Siman 314

The kohanim are suspected of inflicting a defect on a bekhor because they have extensive care and great toil until it is blemished. Therefore, even if the kohen is a sage and sits in a yeshiva, when we do not know the cause of the defect, he is not trusted to say that it happened on its own without intent. And even if we knew the cause of the defect, if there is something that appears as a deception, such as if he gave the bekhor barley in a basket in a manner that when it comes to eat them its lip will be damaged, or the like, one may not slaughter it based on that defect. Therefore, any defect that is capable of occurring by human hands, one does not slaughter based on it until witnesses testify—and not necessarily valid witnesses as in all testimony, but rather as will be explained. And when they testify that it occurred on its own, then one may slaughter based on it. And that which was explained in the previous siman, section 12, that there is no difference there between an Israelite and a kohen, that is there where it is known to us that a gentile caused the defect, and therefore we have no reason to suspect the kohen that he commanded him so, and we say if he wanted to commit a transgression he would have done it himself; therefore the kohen and the Israelite are equal. But here, where we do not know at all who caused the defect, or we know that the defect was brought about through the action of the kohen, there is certainly room to suspect him.

The kohen may testify regarding another kohen concerning a bekhor in his possession that this blemish fell of its own accord, and we do not fear for reciprocity—that he testifies falsely for him so that he too will testify for him at another time. And even though he is suspect, he is believed regarding the affairs of others, as written in siman 119. And a complete testimony is not required here; rather, one is believed, and even a witness from the mouth of a witness, and even women are believed, and even his son or his daughter may testify for him, except for his wife because she is like his own body. And it appears that all those disqualified from testimony who are fit for the testimony of a woman whose husband died, as written in Even HaEzer siman 17, are fit for the testimony of a bekhor, and those disqualified for the testimony of a woman are disqualified also regarding a bekhor. And even though in the testimony of a woman she herself is believed, whereas here he and his wife are not believed, this is because he is suspect and his wife is like his own body; and furthermore, there the reason is that she is exacting, as is explained there, but in all other matters they are equal. And so it is implied somewhat in the Gemara (36a), see there.

The Rambam wrote in chapter 2, law 16: Regarding all blemishes that are capable of being caused by human hands, the shepherd is believed concerning them to say they occurred on their own and were not made intentionally, and one may slaughter based on them. In what case does this apply? When the shepherd was an Israelite and the bechor was in the hand of the kohen. But if the shepherd was a kohen and the bechor was still in the hand of its Israelite owner, behold, he is not believed, and we suspect him that perhaps he inflicted a blemish upon it so that he would give it to him. Thus far his words. The Ramban and the Rosh validate the kohen shepherd to testify while the bechor is in the possession of the Israelite, and we are not concerned that he testifies so that he will give it to him, for an ordinary shepherd is an am ha'aretz and thinks that the owner will give it to a kohen who is a talmid chacham. Their dispute depends on the sugya of the Shas (35a) where there is a dispute regarding this, see there. In the Shulchan Aruch, both opinions were cited.

There is one who inferred from the wording of the Rambam and the Shulchan Aruch, who wrote: "until a witness testified from the mouth of another witness etc. is believed, even a woman is believed to say, 'in my presence this blemish fell' etc." Thus far his words; that since they wrote regarding a woman "in my presence" etc., she is not believed as a witness from the mouth of another witness, but only when she saw it herself (the Hagahot Rabbi Akiva Eiger in the name of the Maharanach). But it explicitly implies in the Gemara (36) the opposite, for they inquired whether a witness from the mouth of another witness is valid regarding a bekhor, and it resolved it from that which was taught: "a witness from the mouth of another witness is only valid for testimony for which a woman is valid," see there. And this is the case regarding a bekhor and an agunah, and there even a woman is valid as a witness from the mouth of another witness, even a woman from the mouth of a woman, as is explained in Even HaEzer siman 17 section 3, and here too it is so. And the inference from the words of the Rambam is no inference at all, for the Rambam wrote the law of a witness from the mouth of another witness before all of them, and afterwards he enumerated that a woman, a shepherd, and a kohen are believed, and regarding all of them he wrote this wording in their reliability, that they saw that this blemish fell on its own, and automatically a witness from the mouth of another witness is also believed. And in the Tur indeed this wording is not present because he followed a different order, and the Shulchan Aruch is always drawn after the wording of the Rambam and not after his order, as is known (as the Ma'adaney Yom Tov wrote in his introduction).

If a Kuti speaking in innocence is believed to say this blemish fell of its own accord, it has not been clarified if he is believed. From the Gemara there is no proof, for it only compares it to the testimony of a woman regarding the matter of a witness from the mouth of a witness, as I have written. Furthermore, there is no proof from what is written in siman 69 that regarding a rabbinic matter one is believed when speaking in innocence, and the inflicting of a blemish on a bekhor in this time is a rabbinic matter according to most poskim, as I wrote in the previous siman. Indeed, I saw one of the great authorities who ruled so for this reason. However, it was clarified at the end of siman 137 that where there is a presumption of prohibition, even in a rabbinic matter he is not believed, see there, and here there is a presumption of prohibition (and I wonder at the Tiferet LeMoshe brought by the Pitchei Teshuva). Nevertheless, it is possible to say that here the presumption of prohibition does not apply, for the permission is perforce before us since it has a blemish, and perforce it has left its presumption of prohibition, rather it is prohibited by rabbinic law; if so, he is certainly believed when speaking in innocence.

The Tur wrote: A kohen who has a firstborn animal, and he and all his household members stood with him outside, and the firstborn entered a whole house alone and emerged with a defect, it is permitted to slaughter it; and we are not concerned that perhaps one of the household members hid there and inflicted a defect upon it, or perhaps he dug a pit to cause it to stumble so that it would fall. Thus far his words. And they raised a difficulty against him, for in the Gemara (35b) this law exists according to the one who holds that his household members are not trusted, and it comes to teach us that in such a case it is permitted since they were not in the house, see there. But according to that which we rule that they are trusted, this law is superfluous, for even while they are in the house they are trusted, and all the more so in such a case. And for this reason, the Rambam and the Shulchan Aruch did not bring this law (Beit Yosef). And the commentators labored to answer that in this there is a novel point even for us, and each explained according to his way (Bach, Perishah, and Taz section 2), but there is no source for this. Furthermore, if so, why did the Rambam not write this? And it appears to me that there is a source in the Gemara there, for it asks there: since all the household members are standing outside, what does it come to teach us? And it answers: lest you say we should concern ourselves with suspicion, it comes to teach us [otherwise]. And the Tosafot explained that they would suspect perhaps one of the household members remained in the house; it comes to teach us that we are not concerned. And according to this, for us there is no novel point since they are trusted. But Rashi explained, and this is his wording: since there was no man in the house, shall we concern ourselves that perhaps they caused it from the beginning, etc. Thus far his words. That is to say, that this itself is like an artifice, that they all went outside, and this is not the way of a householder; and it comes to teach us that we are not concerned for this artifice. And according to this, even for us there is a novel point, as is understood. And the Rambam explained like the Tosafot, and therefore did not bring this law, and the Tur explains like Rashi, and therefore found it necessary to bring this law (and see the Rosh there, who also wrote that we are not concerned perhaps one hid in the house, and did not write like the wording of the Tosafot "perhaps one remained in the house," for this hiding is the artifice; and delve into this).

When is the kohen not believed? When we knew regarding it that it is a bekhor. But if they were not established in the knowledge that it is a bekhor, and the kohen said, "It is a bekhor and this blemish occurred on its own," he is believed, for "the mouth that forbade is the mouth that permitted." That is to say, a migo, for if he desired, he could have said it is not a bekhor. And even though this is not a complete migo, for behold, he brings it to a sage to see if it is permitted based on this blemish, and if so, we would say that this kohen is not suspected of eating kodashim outside [the Temple], and therefore he brought it to see if it is a permanent blemish, but nevertheless, regarding the inflicting of a blemish he is suspected, and behold there is no migo here; however, even in this there is a migo, and that is that he could have made a blemish in it that is recognizable to all as a blemish and he would not have needed to bring it to a sage. Rather, certainly this kohen is not suspected of inflicting a blemish (as is implied in the Gemara 36, see there).

The Rambam wrote at the end of chapter 2: A bechor that was in the hand of a kohen and a blemish fell upon it, and one witness testified about it that this blemish fell of its own accord, but we do not know if this blemish is one upon which we may slaughter the bechor, and the kohen in whose hand it is came and said, "I showed this blemish to an expert and he permitted it for slaughtering," behold he is trusted, and we do not fear that perhaps he did not show it or perhaps it is an unblemished bechor, for they are not suspected of slaughtering kodashim outside, which is a sin of karet. Similarly, the kohen is trusted to say, "An Israelite gave me this bechor with its blemish and it did not fall in my domain," so as to fear for him that perhaps he inflicted it, for the matter is likely to be revealed and he is afraid that perhaps they will ask its owners and they will say it was unblemished at the time they gave it to me. Thus far his words. And it is simple that it deals with a case where we know who the owners are, for in this he is afraid that perhaps they will ask, but where the name of the owners is not known, this does not apply. And so it is explained in the Gemara (36) and in the Mishnah of Demai chapter 4 which was brought there in the Gemara. Therefore, the Rambam was required to state another reason in the first law because he did not say "I showed it to expert so-and-so," and he teaches us that in this he does not need to say "so-and-so" because there is another reason; but when he says "so-and-so," it is permitted due to the reason of a matter that is likely to be revealed, and he derived this from the sugya of the Shas there (and according to this there is no dispute between the Rambam and the Rosh, and regarding the core of the matters the Taz also wrote in subsection 4, except that what he wrote at the end that the Rambam holds that in the first clause "so-and-so" does not help, for if not so why did he not write regarding this law "if he said so-and-so," see there, it is not a precise inference at all, for the Rambam transcribed two laws of the Shas, each with its own reason. And the Shach in subsection 7 wrote that regarding a revealed blemish this reason of eating kodashim outside does not apply, see there, and certainly it is so, and it does not deal with such a case, and in such a case he certainly must say "so-and-so." And the Beit Yosef in section 7 left it undefined, and study this well).

There is one who says that regarding what was explained concerning a bechor in the hand of a kohen—that two things are required: first, that they testify about it that this mum occurred on its own, and second, that he says "I showed this mum to an expert and he permitted it"—this is when we knew that it came into the hand of the kohen without a mum. However, when we did not know this, there is no need for testimony that the mum occurred on its own, for he is believed with a migo, since if he wanted, he could have said "An Israelite gave it to him with its mum" (Bach). But it is not so, for he must say "so-and-so [gave it to me]," and if so, he is afraid lest they ask him and he be proven a liar, and there is no migo here (Shach, subsection 6). And know that there is one who wrote that according to the Rambam, one does not need to say "expert so-and-so" (ibid., subsection 8), but it does not appear so (and regarding what the Shach wrote, that in the Baraita the reason is because he evades [the truth], I am astonished, for this is in the initial thought, but when the end [of the Baraita] says "it supports him," the initial reasoning is rejected; see there and examine it closely).

Specifically the kohen does not have credibility, but the Yisrael who said, "I gave this firstborn to a kohen with its blemish," is believed. And not only this, but even if the firstborn was small at the time that he gave it to him and now it is large, I do not say that perhaps the Yisrael does not recognize it; for since he said that he recognizes it, he is believed, and he certainly recognizes it.

Since the Israelite is trusted, therefore, regarding a doubtful bekhor that is eaten by an Israelite due to its blemish and he is not required to give it to a kohen, he is trusted to say that the blemish occurred on its own, for an Israelite is not suspected even regarding his own property. And even though an Israelite is not suspected of inflicting a blemish, nevertheless, our Sages of blessed memory said (36b) that one does not examine the bekhor for an Israelite when it is a certain bekhor unless a kohen is with him. For we fear that when the expert tells him it is a blemish and it is permitted to slaughter because of it, he will go and slaughter it for himself and not give it to a kohen. For even though he is not suspected of eating consecrated items outside [the Temple]—as for this reason he consulted an expert—and he is also not suspected of inflicting a blemish, nevertheless, in this matter he is suspected of stealing the priestly gifts; because it is money that has no claimants, it appears to him as permitted. Therefore, if the Israelite was a sage and known to be scrupulous with himself not to enter into a concern of theft, they examine it for him. And so too when the blemish was visible to all, such as if its hand or leg was severed, since he brought it to a wise expert, he is in the presumption of being scrupulous with himself; therefore, they examine it for him even though a kohen is not with him (and the wording of the Gemara there: "For the honor of the sage would he not commit a prohibition?" is stated as a wonder, and it requires further study: is it because of honor? Behold, when it is slaughtered without the permission of a sage it is forbidden for benefit! And one must say that it follows Rabbi Yehuda on page 28, and nevertheless even according to Rabbi Meir it is so, for it is a light prohibition compared to theft, and therefore the poskim did not write this wording; and look closely into this).