Siman 315

A doubtful bechor, the owner does not need to give it to a kohen, for the rule is that the burden of proof rests on the claimant; rather, he shall keep it until it develops a blemish and then eat it. It is forbidden for shearing and labor, for perhaps it is a bechor, and a doubt regarding a prohibition is resolved stringently. If the owner wishes to give it to a kohen, whether the kohen is obligated to accept it was explained in siman 306, section 18, see there. Conversely, when the kohen seized it from the owner against his will, whether the owner has the power to remove it from his hand, there is a dispute regarding this. For the Rambam in chapter 5 ruled that we do not remove it from his hand, for now the Israelite is the one seeking to remove it and the burden of proof is upon him; and if afterward the Israelite returns and seizes it, the kohen cannot remove it from his hand, and so on forever. The Rosh and most of the poskim disagreed with him and hold that according to the sugya of the Shas (Bava Metzia 6b) it is explicitly explained that if a kohen seized it, we remove it from his hand. And in all doubts of the law, such is the rule in monetary laws: that whoever was the possessor at the time the doubt arose is always called the possessor, and when the opposing party seizes it, we remove it from his hand. The Rambam holds that we do not remove it, as is explained in Choshen Mishpat in several places. There are those who added here a reason for the words of those who disagree: that even if in other places we do not remove it, here we remove it, for even if it is a bechor, nevertheless the Israelite has the tovat hana'ah to give it to any kohen he wishes. If so, he can say to the kohen: "It is true that it is a bechor, but I want to give it to a different kohen," and consequently he is always the possessor (Levush, and see Shach and Nekudot HaKesef). It is possible that even the Rambam only said it regarding "acquaintances of the priesthood" where if it were certainly a bechor he would certainly have given it to him, or that he follows his own reasoning that tovat hana'ah is not considered money, as he wrote in Choshen Mishpat siman 350. Know that a doubtful bechor is liable for the matanot, and it was explained above in siman 61. Our teacher, the Rema, decided in accordance with the opinion of those who disagree.

And not only this, but even if the Yisrael gave it to him by mistake, thinking that he was required to give it to him and afterwards it became known to him that he was not required to give it, the kohen must return it to him, for a giving in error is not considered a giving. And this law is only according to the Rosh, but according to the Rambam, granted that it is not considered a giving, nevertheless, ultimately it is now in the hand of the kohen and the Yisrael cannot remove it from his hand.

I saw one who wrote that in a case of a doubtful bechor, the owners are obligated to care for it for thirty days for small livestock and fifty days for large livestock, for it is no worse than a definite bechor. However, afterwards he is not obligated to care for it based on a "from whatever [side you take]" argument: if it is a bechor, behold it is upon the kohen to care for it, and if it is not a bechor, behold he may slaughter it; rather, the kohen is obligated to receive it and care for it, and if he does not wish to, it is a disgrace to the priestly gifts (Derishah in the name of Mahara"k). And behold, this is certainly so when there is a kohen to whom to give it and the kohen must receive it according to the details explained in siman 306, it is obvious that it is so. But when it is not upon the kohen to receive it, such as when the owners were negligent in that they did not sell it and the like as written there, perforce the obligation is upon the owners to care for it forever until a mum falls upon it. And the "from whatever [side you take]" argument is not relevant here, for behold the Torah forbade him from slaughtering it without a mum, and perforce he must care for it. And he may hand it over to a Cuthean as written in siman 313, even regarding a definite bechor, see there.

A firstborn animal is like a firstborn human in that it is not sanctified unless it emerges via the womb, as it is written: "Every firstling of the womb," and not one that emerges via a cesarean section. And likewise, it must be a firstborn, meaning that even if it is the first to emerge via the womb, such as if she previously gave birth even to a female and it emerged via a cesarean section, and this one now emerged via the womb, it is not a firstborn because it is not the first; for we require two things: "firstborn" and "firstling of the womb," as I wrote in siman 305 regarding a firstborn human. Therefore, if she gave birth to two males, and the first emerged via a cesarean section and the second via the womb, both are not firstborns—this one because it emerged via a cesarean section, and that one because it is not the firstborn. And if it is not known whether the first emerged via the womb and the second via a cesarean section or vice versa, the first is a doubtful firstborn, and in siman 318 several more doubts will be explained; see there.

A firstborn that is a tumtum is a doubtful firstborn, for it is not known if it is a male or a female, and the owner may eat it in its blemish if a blemish occurs in it. However, the status of tumtum itself is not a blemish, because it is possible to tear the place of the tumtum and see if it is a male or not. I wonder why the sages did not require tearing and seeing, since it is possible to clarify the doubt. It appears to me that they were not obligated to do so because of the suffering of living creatures; however, if it tears on its own, it can be clarified, and as long as it is not clarified, it remains a doubt and belongs to the owners. Specifically, when it urinates from the place of female anatomy it was a doubt, but if it urinates from the place of male anatomy, it is a certain firstborn and must be given to the kohen. The Rambam in chapter 2 wrote that even in such a case it is a doubt, but all the Rishonim disagree with him, for according to the sugya of the Shas at the end of chapter 6 it is explicitly proven so, for when it urinates from the place of female anatomy one can say its male anatomy was inverted into female anatomy, but not the reverse, see there. An androgynos is also a doubtful firstborn and is eaten in its blemish by the owners. Even though there is one who holds it is a distinct creation and has no holiness at all, and is permitted for shearing and labor and does not require a blemish, nevertheless, due to the stringency of the matter, we say that it is a doubtful male or doubtful female and not a distinct creation, and it is a doubtful firstborn. They wrote that regarding this, even according to the Rambam, if a kohen seized it, we remove it from his hand, because the primary ruling is that it is a distinct creation and is a doubtful firstborn, except that we are stringent in this regarding its slaughter, shearing, and labor, but not regarding the kohen (the Gara in the name of Tosafot Kohanim, and so it appears from the Shach, subsection 9, and there is a printing error there where he wrote that it is included as a female, and it should say male and female, see there).

The Rambam wrote in chapter 4, law 14: A beast that went out full and came back empty, the one that comes after it is a bekhor out of doubt, lest she miscarried something that does not exempt from the law of the firstborn, for the miscarriages of a beast do not have the status of opening the womb until their head is rounded like a ball of woof. Thus far his words. And a ball is a small sphere that they place at the head of the spindle with which they spin, and the woof is larger than that of the warp. And if the head of the miscarriage is as thick as this measure, it is an opening of the womb and exempts the one that comes after it from the status of bekhor, but with less than this, it does not exempt. See in section 13.

And behold, regarding the law of one that arrived empty, the Rambam did not need to write the measurement for exempting the womb since she miscarried not in our presence. Therefore, indeed, the Tur and the Shulchan Aruch in section 4 wrote regarding a cow that went out full and returned empty, the one that follows it is a bechor out of doubt, lest she miscarried something that does not exempt from the status of bechor. Thus far their words. And they did not write more. However, the Rambam's intention was for a different law, namely, where she miscarried in our presence, where we see if the head is rounded like a spool of woof, which exempts the one that follows it from the status of bechor, and if not, it does not exempt. The Tur and the Shulchan Aruch did not write this because we are not expert in these measurements, just as they wrote in siman 194 that we are not expert in forms. Therefore, we are always obligated to be stringent except in a clear matter. And the measurement of days is not a sign in an animal, as the Rambam wrote there. This is his wording: We have already explained that the fetus in a human is completed at forty days, and one who miscarries at less than forty, it is not a fetus; but regarding the fetus of an animal, the sages did not establish the count, etc. Thus far his words. If so, it is always a doubt regarding the bechor that follows a miscarriage, and only in a case where she discharged slime or a placenta does it exempt, as will be explained.

A small animal that discharged filth, meaning that the fetus dissolved and the discharge emerged, and this matter is evident to all—the one born after it is exempt from bekhorah, because this was a complete fetus that merely dissolved. However, in a large animal, this is not a sign, as there can be a discharge of filth without a fetus. And the placenta itself possesses no sanctity; even if it is from a bekhor, nevertheless it possesses no sanctity and it is permitted to feed it to dogs. In a small animal, this is not a sign. And thus the sages taught in the Mishnah at the beginning of the third chapter: A sign of a fetus in a small animal is a discharge of filth, and in a large animal, a placenta. See there. And we further learned there (21a): A large animal that discharged a mass of blood, it must be buried and she is exempt from bekhorah, for the presumption is that the fetus was within it and the blood increased upon it and destroyed it and nullified it. And they bury this mass like a miscarriage from a first-born animal, even though it is not sanctified; they only required burying it in order to publicize that she is exempt from bekhorah. In the case of a placenta, they did not require this, for everyone knows that there is no placenta without a fetus, and she is exempt from bekhorah; and likewise regarding the discharge of filth in a small animal. But a mass of blood is not known. And it appears that in a small animal, a mass of blood is not applicable. And know that regarding a discharge of filth, there is another condition, as will be explained.

And the reason that they do not possess sanctity, they said in Chullin at the end of the fourth chapter regarding a placenta, is because the majority of animals give birth to something sanctified as a bekhor, and a minority to something that is not sanctified; and what is this? A nidmeh, meaning it does not resemble its mother in its form, as will be explained. And all those that give birth, give birth to half males and half females; attach the minority of nidmeh to the half of females, and the males become a minority, see there. And the Rambam wrote this reason there, and automatically this reason also applies to a kharara. However, in Bekhorot regarding a kharara there, the reason is explained because the flesh is nullified in the majority of blood, see there. And the Rambam there also wrote this reason. And it is a wonder why a different reason is needed for a kharara. And on the Gemara there is no difficulty, for there it says this regarding matters of tumah and taharah, see there. But the Rambam, why did he need a different reason? And perhaps since this logic exists in the Gemara, the Rambam did not want to bring another reason, and in the law there is no practical difference in this. And know that this which has been explained, that tinuf exempts, this is specifically when they showed the tinuf to an expert shepherd and he said that this is the dissolution of the fetus.

A בכור that, at the time of its emergence from the womb, was wrapped inside with fibers and brought out, and did not touch the walls of the womb, or if it was wrapped in another afterbirth, or if its sister wrapped it and it emerged and did not touch as has been mentioned, or if the walls of the womb opened and it emerged, or if the walls of the womb were uprooted and hung on the neck of the offspring and it emerged—all these are queried in Chullin (70) whether it is sanctified as a בכור or not because it did not touch the womb, and the query was not resolved, and it is a doubtful בכור. And likewise, if one attached two wombs of two animals and it emerged from this one and entered into that one and emerged, it is also a query that was not resolved. And likewise, if part of the womb was breached and the majority remained in its place, but it emerged through the breach, or if the breach was the majority and it emerged through the standing part, this is a doubt. But if the walls of the womb were worn down, such that the thickness of the walls was removed from the inside, it is not sanctified at all (ibid.). And in the Shulchan Aruch all these were not brought because it is not common.

A ewe that gave birth to a species of goat, or a goat that gave birth to a species of ram, is exempt from the law of the firstborn, as it is said: "But the firstborn of an ox," and this word "firstborn" is superfluous, for it is already speaking of the firstborn above it, as it is written: "Every firstling of the womb." Rather, it comes for an exposition: until he is an ox and his firstborn is an ox, and likewise regarding a sheep and a goat; that is to say, it must be similar to its mother (Rashi 5b). And if it possessed even some of the signs of its mother, this is a firstborn, as it is written "But," which is a division; that is to say, "But" is a limitation, to limit that it does not require a majority of similarity to its mother. However, it is a firstborn with a permanent defect, for you have no greater defect than a change in its creation, and it was born with its defect.

The Tur wrote: A ewe (ram) that is the offspring of a ewe, and that ewe is the offspring of a goat; and similarly, a goat that is the offspring of a goat, and that goat is the offspring of a ewe; and similarly, a ewe (ram) that is the offspring of a goat that is the offspring of a ewe—all of them are exempt. Thus far his words. This is explained in the Gemara (17b). The Rambam omitted this, and it requires further study (see the Beit Yosef who wrote a forced reason, and in the Shulchan Aruch he also omitted this, and it is very puzzling).

He further wrote: A cow that gave birth to a species of donkey, or a female donkey that gave birth to a species of cow or horse, it is not holy, neither with the holiness of a pure animal nor with the holiness of an impure animal. And if it resembles the mother in some of its signs: a cow that gave birth to something like a species of donkey, he is liable and it shall be given to the kohen; and a cow that gave birth to something like a species of horse or camel, it is a doubt and it shall be eaten in its blemish by the owners; and a female donkey that gave birth to something like a species of horse, it is a doubt regarding peter hamor and he shall separate a lamb for it and it is his. Thus far his words. And it is simple that all these, even with partial signs where he is liable or it is a doubt, nevertheless it is a baal mum, and he did not need to explain this as he explained it previously (Beit Yosef). And the reason that a cow that gave birth to something like a species of donkey is certain is because on both sides there is an aspect of firstborn status, but horse and camel do not have firstborn status, therefore it is a doubt. And in these doubts, according to the Rambam, if a kohen seized it, we do not remove it from his hand, and according to the Rosh, we remove it from his hand; and it has already been explained that such is the primary ruling according to the ruling of our teacher, the Rema. (On the law in section 6, "it went out full," the Gara raised a difficulty, for in Niddah 29 it is explained that even though the majority of those who give birth give birth to a viable fetus, nevertheless since the majority discharge one day before birth and this one did not discharge, the majority is weakened; if so, this is specifically when it went out and did not tarry, but if it tarried one day, we say that in truth it discharged and it exempts from the firstborn status, and they should have explained this, and it requires further study. And the Sidrei Taharah similarly raised a difficulty in his novellae there. And in my humble opinion, it seems that there is no difficulty at all, for it is true that Rashi so explained there in Niddah, "and it came back empty on that same day," and the Tosafot wrote likewise in the heading starting "And this," and this is their wording: "And for example where it did not tarry outside etc." But the wording of the Baraita "it went out full and came back empty" is missing the main point, as is understood. And therefore I say that certainly Ravina answered the Baraita thus according to Rabbi Yehoshua ben Levi, but according to the previous answer, as it challenged from the Mishnah "she shall sit for a male and for a female and for a niddah" and answered that when Rabbi Yehoshua ben Levi spoke it was when she was established as pregnant, if so, there is no difficulty at all from an animal, for an animal is always like one not established as pregnant, for which reason the Rambam wrote that the sages did not certain the number of days for an animal. And regarding what I wrote in section 7, the Gemara challenged from an animal in the way of the Gemara, and the Rambam and the poskim followed the previous answer, and delve into this.)