Siman 316

One who purchases an animal from a gentile and does not know if it has given birth or not, the first offspring that it gives birth to while with him is a doubtful bechor, and it shall be eaten by the owners once it has a defect, and it is not given to the kohen, for the burden of proof rests upon the claimant. And there is no distinction whether he purchased it within its first year or after its first year; even if it is many years old, as long as it is not known if it has given birth, it is a doubtful bechor. And no sign is effective regarding this, such as the signs in the cracks of its horns, where they say that the number of offspring it has birthed corresponds to the number of cracks, or other signs. And even if the seller is speaking in innocence, he is not believed, for regarding a Torah matter he is not believed, and even regarding a rabbinic matter where there is a presumption of prohibition, he is not believed, as I wrote at the end of siman 137. And every animal has a presumption that it has not yet given birth, just as it was born, similar to a woman who has a presumption of being unmarried, and so it is regarding an animal.

And one should not ask, since she is in her first year or slightly less, is it not known that a one-year-old animal has not previously given birth such that when she gives birth now it should be a certain bechor? However, thus the sages taught in the Mishnah at the beginning of the third chapter: One who purchases an animal from a gentile, etc. Rabbi Yishmael says: A goat in its first year is certainly for the kohen, from this point forward it is a doubt; a ewe in its second year is certainly for the kohen, etc.; a cow or a donkey in their third year are certainly for the kohen, etc. Rabbi Akiva said to him: If the animal were exempt by the offspring alone, it would be as you say, but they said: The sign of an offspring in a small animal is tinuf, and in a large animal it is a placenta, etc. And we rule like Rabbi Akiva, and it is possible for tinuf to occur even within its first year, and also when she experiences tinuf she can return and give birth within her first year; so we conclude in the Gemara ibid. (20).

The Ramban, of blessed memory, wrote in his laws, and this is his wording: And this is not to say that we are concerned for a discharge, for it is a minority etc., but rather that if she discharged and a wise shepherd said it was the discharge of an embryo, and she gave birth again within her year, we do not say a discharging animal does not give birth again within its year etc., but rather she gives birth again within her year and is exempt from the law of the firstborn because of the first discharge etc. And it stands to reason for us that when we are not concerned for a discharge, it is specifically regarding the firstborn itself to validate it for the altar and to be lashed for it regarding shearing and labor and to conduct with them all the laws of a certain firstborn, but to extract from the priest on their account the owner does not extract, for we hold that in matters of money we do not follow the majority and the burden of proof is on the claimant. Therefore, whenever one purchased an animal from a gentile, we are concerned lest she was exempted by a discharge, and it is eaten in its blemish by the owner, and such is the halacha. Thus far his words.

The Rosh wrote, and this is his wording: And the halacha etc. that within its year it is also a case of doubt, for we are concerned for discharge, and one that discharges returns and gives birth within its year etc. And even though we maintain that we follow the majority etc. it can be said, as the Ri explained, that there is a majority that assists the minority of those that discharge, for the majority of animals conceive when they reach the time they are fit to conceive, and this one certainly conceived in its time and discharged etc. And even one who is not concerned for the minority of those that discharge admits that he does not give it to the kohen, for in matters of money we do not follow the majority etc. Thus far his words. And according to this, regarding the kohen, we are certainly concerned for discharge; however, regarding the bekhor itself, it was obvious to the Ramban that it is a complete bekhor in the first year and we are not concerned for discharge. But according to the Rosh, even regarding the bekhor itself we are concerned, because there is a majority that assists the minority as he wrote. And according to this, the Rambam in chapter 4, and the Tur, and the Shulchan Aruch who wrote: One who purchases an animal from a gentile etc. it is a doubtful bekhor and shall be eaten in its blemish by the owners and it does not belong to the kohen—this is according to all opinions, for in matters of money we do not follow the majority.

However, I wonder greatly at all the poskim who did not make a distinction in this matter and wrote a great general rule that even within its first year it is a doubtfully-born בכור. For in the Gemara they only spoke regarding a מטנפת, and that was regarding what Rabbi Yochanan said: "A goat in its first year is certainly for the kohen," and they disagreed with him due to the reason of טינוף. But regarding a ewe, he said "in its second year it is certainly for the kohen," and a cow and a donkey "in their third year are certainly for the kohen." And regarding this they disagreed due to the reason of a שליא in a large animal, as is explained in the Mishnah. And it is obvious that this does not occur in the first or second year of a cow or a donkey, as the Tosafot wrote there on the Mishnah, that within two years it does not give birth at all, see there. And this we see with our own senses. And even according to the words of the Tosafot in Chullin (47) that now natures have changed and there are cows that give birth at two years, see there, nevertheless, in the first year it is obvious that this is among the impossibilities. And so too a ewe in its first year. Therefore, in the entire sugya they only dealt there with a goat, for it is its way to give birth in the first year, but not with a ewe, a cow, or a donkey. And it is obvious according to what the Rosh wrote, that the majority assists the minority, and the majority is when they reach the time they are fit to conceive; and this is only in a goat and not in a ewe, a cow, or a donkey, for not only does the majority not reach the time to conceive in the first year, but it seems there is not even a minority. And I have not seen anyone who was awakened to this, and it requires great study. (And regarding the Rambam I do not have such a difficulty, for he wrote: "One who buys an animal etc. and it is not known if it gave birth first etc." and it can be said in truth that this is in the second year at the least, for in the first year there is no doubt. But the Tur and Shulchan Aruch, who wrote explicitly "even within its year," it is difficult. And to say that they hold that טינוף in the first year exists even in a cow, this is even more wonderous.)

In the Gemara ibid., it asks: why is there a doubt in more than a year for a goat, more than two for a ewe, and more than three for a cow and a donkey? Is there not no doubt at all here, for it is certainly not a firstborn, since we follow the majority, and the majority of animals conceive and give birth when their time arrives (the Gemara said within a year, and this refers to a goat). Ravina answers: when we follow the majority, it is in a majority that does not depend on an action, but this majority depends on the action of the male mounting, and perhaps they did not cause him to mate with her, and we do not follow the majority. And even though the majority of women conceive and give birth and we consider this a majority in the entire Shas, a human is different because he presumably attends to his wife and it is as if it happens on its own, but an animal sometimes requires mating (Tosafot ibid. and Yevamot 119). And one should not ask regarding the Rosh that we cited in section 4, who says that there is a majority that assists the minority, and the majority is that most of them conceive when their time arrives—for we have said that a majority that depends on an action is not a majority—for this is no question; for granted that this is not a complete majority, nevertheless it is obvious that it assists the minority that discharge (and so it must be said in Tosafot ibid. 20a, starting with "And Rabbi Yehoshua," see there). And similarly the Shas could have answered that therefore we do not follow the majority because we say: join the minority that do not give birth to the chazakah that she is in the chazakah of not having given birth, and it becomes half and half as we say in every place, and therefore it is a doubt (and so it appears from Tosafot ibid. starting with "It is clarified"). And one should not ask: since the majority is not a complete majority because it depends on an action, if so, when there is a chazakah against it, it should be like a majority to the contrary that she did not give birth, and let us give it to the kohen—for this is no question, as we do not follow the majority in matters of money (and regarding the prohibition of the firstborn itself, indeed one could say so; see regarding this and delve into it).

And with that which has been explained, that the majority is not a complete majority and there is also a chazakah that she has not given birth, the law that was explained is understood: that even in mabl"t he is not believed, and even simanim are of no avail, and even if it is clearly visible that she is old it is of no avail (Shach, subsection 3), and even milk is of no avail, as will be explained. And seemingly it is not understood, for granted that this is a Torah prohibition, but perforce there is no Torah prohibition here, for the majority conceive and give birth, and this is nothing but a rabbinic prohibition; and in a rabbinic prohibition, why should masl"t not be effective? And granted that regarding this it is possible to say that the reason he is not believed in masl"t is because his intention is to improve his sale, for a mother of a bechor is endangered, and furthermore the milk is better in one that is not a first-time mother, as the Levush wrote (see Shach, subsection 2); but nevertheless, why should other simanim not be effective in a rabbinic prohibition, and all the more so when she is milking? Rather, the truth is that it is still a Torah prohibition, for the majority is not a complete majority and there is also a chazakah against it (as mentioned above).

If one purchased a nursing animal from a Cuthite, that is, a young offspring is nursing from it, that which it gives birth to afterwards while with the Israelite is certainly chullin. There is no concern here due to two reasons: First, behold it is producing milk, for according to the Rambam and the Rosh, for this reason alone it is exempt from the law of the bechor, as will be explained. And even according to the system of Rabbeinu Tam that will be explained, that milk does not exempt, here since there is an offspring with it, it is obvious that it gave birth. And so too according to the Rambam and the Rosh, even if we knew regarding this cow that it was milked while it had not yet given birth at all, and if so, in its case the milk does not exempt, nevertheless the offspring exempts. And we do not need to concern ourselves that perhaps the offspring is not hers and it is merely following after her while in truth the offspring belongs to another mother; we do not concern ourselves with this, for since it is attached after her, it certainly gave birth to it. And not only this, but even if this nursing one was of another form that does not resemble its mother and appears like an entirely different species, and even if it appears like a pig, nevertheless we attribute this offspring to her and we say that she gave birth to an offspring in this form, and she is exempt from the law of the bechor. The reason is that being attached after its mother is a clarified presumption. Furthermore, even though this is not a clarified presumption—and for this reason we say in the Gemara (24b) that this pig is forbidden for consumption—nevertheless it is obvious that she gave birth to some offspring, for if not so, she would not show mercy to another offspring, but once she has given birth, she shows mercy even to another offspring (Gemara ibid. and see Shach subsection 6; and in truth it must perforce be said so, for how could we establish it upon the presumption of being attached, that it is her offspring, behold against this there is a majority that most animals give birth to their own likeness? And it is possible that it is a more powerful presumption than all other presumptions and is like a clear matter that nothing stands against it, and so it appears to me from the sugya there on page 24b and from the wording of Rabban Shimon ben Gamliel "the matter stands in its presumption," see there and examine carefully).

Our teacher, the Beit Yosef, wrote in section 3: Similarly, an animal that is lactating is exempt from the law of the firstborn, for the majority of animals do not lactate unless they have given birth. Thus far his words. This is the opinion of the Rambam in chapter 4, and the Ramban and the Rosh at the beginning of chapter 3. However, Rabbeinu Tam in Tosafot there brought many proofs that milk does not exempt, based on the reasoning that one should join the minority of those that lactate before their birth to the status quo of her body, which is the status quo that she has not given birth. He brought proof from that which Rabban Shimon ben Gamliel said, and the same law we brought applies when the offspring is nursing, she is exempt from the law of the firstborn, but because of milk alone he did not exempt. Our teachers who disagree would hold that this refers to a case where we saw that she was milked before she gave birth, as I wrote in the previous section. Furthermore, they were not concerned with the reasoning of joining the minority to the status quo, for here there are two majorities: one, that the majority of animals conceive and give birth, and even though we explained that it is not a complete majority because it depends on an action, nevertheless it is at least a majority; and furthermore, the majority of animals do not lactate unless they give birth. Against two majorities we do not say join the minority to the status quo, and it is like a minority of a minority, and the status quo is not considered against two majorities (so it appears to me).

Nevertheless, our teacher, the Rema, was concerned for the opinion of Rabbeinu Tam and wrote: And there are those who say that we do not rely on the fact that she is milking. And so the Acharonim ruled, and so we conduct ourselves in all these provinces. However, if there is another side for permission regarding this, or if a gentile is speaking in innocence not for the purpose of improving his sale and says that she gave birth, we rely on this to permit it. And specifically regarding cows and in a place where it has not been heard that they milk without a fetus; but regarding goats, where it is common that they milk without a fetus, we do not rely on this even in a place where there is a double doubt, such as where she gave birth to two and it can be said of each one that it is not a bechor, even so it is forbidden. And it appears to me that in a place where it is not the way of goats to do so, or where it is the way of cows to do so, one should not distinguish, and one must investigate this. Thus far his words.

And that which he wrote, that even a sefek sefeka is not effective, his intention is not regarding a complete sefek sefeka, such as if she gave birth to a male and a female, for in such a case it is certainly effective, as in every place we rely upon a sefek sefeka. Rather, his intention is regarding a sefek sefeka such as this, where she gave birth to two males, where in any case there is one that is certain, and this is only like the appearance of a sefek sefeka, and we are stringent, but not in a complete sefek sefeka (Shach, subsection 7). And even though there is one who is uncertain regarding this, nevertheless, this is the primary ruling in the law (Atteret Zekenim, subsection 9, and he himself inclines toward a permissive ruling, see there).

And regarding that which he wrote, that when there is some other aspect of permissibility it is effective, the great authorities agreed that any aspect of permissibility from the perspective of the law joins with this; meaning, that there is one who says that we specifically require another permissibility indicating that she has already given birth, but some other side permissibility, such as if he sold the animal to an Israelite with money alone or with pulling alone, regarding which there is a dispute among the poskim as has been written in siman 320, such that there is another aspect of leniency to the leniency of a milking animal and the like, that it is not effective. But the great authorities agreed that any aspect of leniency that exists in this matter joins for permissibility (Pitchei Teshuvah in the name of the Hagahot Rabbi Akiva Eiger and Levushei Serad).

And regarding that which he wrote, that a masiach lefi tumo is effective if it is not to improve his sale, if it is impossible to determine whether his intention is to improve his sale or not, it appears in my humble opinion that one is able to rely on the lenient view in our country, for we have never heard that a cow would give milk before it has given birth at all. However, regarding goats, we have heard that there are those that give milk before they give birth, and therefore regarding cows one should be lenient, and likewise regarding a mipi mipi lefi tumo from the mouth of a masiach lefi tumo. Furthermore, one should not be exacting with all the laws of masiach lefi tumo that apply to the testimony of a woman; rather, as long as it appears that the gentile told this without the intention of testimony to permit, one can join his words to the case of a milking animal (see Pitchei Teshuva subsection 3, what he wrote in the name of the Chavot Yair and the Chatam Sofer, and I have written what appears in my humble opinion, and the words of the Terumat HaDeshen support me, and delve into this).

An incident occurred with one who claimed a debt from a gentile, and the gentile said to him that he would give him a cow for the debt. He showed him the cow and a calf standing beside it, and said to him: "I will give you the cow for eight gold pieces, and the calf I will leave with me to raise." The Israelite said: "I think she is old." The gentile said to him: "I am not telling you that she is young, but she is also not old, and this is her fourth offspring." The Taz ruled that she was permitted through this, for since the gentile saw that for the Israelite there is importance in however much younger she is, and the Israelite said to him that for a young one he is willing to add money, and nevertheless he said that this is the fourth offspring, it is simple that were it not that the truth is so, he would have told him that she is a first-calver, or at least he should have said that this is the first offspring; rather, certainly he is speaking the truth (Taz subsection 4, and there is one who disagrees with him according to the Pitchei Teshuva subsection 4, and there is no substance to this, and the primary view is like the Taz, for it is true that the Taz elaborated at great length and there is room to deliberate on several of his words, but for the halacha, this is the primary view).

An incident occurred where one person purchased a milking cow from a gentile and it gave birth to a male, and the Israelite sent to inquire of him indirectly. This means that two people were wagering with one another regarding this cow, as one said it was a first-time mother and one said it was not a first-time mother. When the Jew arrived at that place, two other gentiles encountered him and asked him, "Where are you going?" and he told them the incident. They answered him, "We know the cow, and it has already birthed two calves." This messenger went to the seller and also told him the incident in a jesting manner, and he also answered him that it had given birth twice. They ruled that this is not a בכור (Chavat Yair, siman 10). And it is simple, since it was a milking cow; but regarding one that is not milking, it is impossible to rely on this. It is not similar to the previous incident, for there he suffered a loss through this, which is not the case here (it appears to me).

Our teacher, the Beit Yosef, wrote in section 4: An animal that we saw producing milk and we knew that it had not given birth, if afterwards we saw it nursing and we did not know if it gave birth to that offspring or not, it is under the chazakah that it gave birth to it. Thus far his words. We have already explained this in section 5, and that the intention is not that it necessarily gave birth to it, but rather that it had given birth to an offspring previously; see there (Shach, subsection 9). And see above, siman 16, section 7. And he further wrote: One who has in his herd first-borns and those that are not first-borns, and they gave birth and no person was there, and he found the first-borns nursing females and those that are not first-borns nursing males, he does not concern himself that perhaps the offspring of this one came to that one and that of this one to that one; rather, the matter remains in its chazakah that each one nurses its own. Thus far his words. And even according to what was written in section 8, that it is possible it would nurse even that which is not its own, that is when it has given birth once, as was written there. Furthermore, in a place where its own offspring is present, it will not leave its own and nurse another; and this reasoning is in the Gemara (24a), see there.

One who buys an animal from an Israelite and did not ask the seller if it is a first-born, and the seller also did not tell him, it is under the presumption that it has already given birth; for if it had not yet given birth, the seller would have informed him so that he would not stumble into a prohibition. Therefore, the buyer is permitted to the male offspring that is born to him, unless the seller informs him afterward that it is a first-born. This is a dispute in the Gemara (21a): Rava and Shmuel, and Rabbi Yochanan; and Rabbi Yochanan permits. The general rule is that between Rav and Rabbi Yochanan, or Shmuel and Rabbi Yochanan, the halacha follows Rabbi Yochanan. Our teacher, the Rema, in section 6 wrote: And some say it is a doubtful bechor. Thus far his words. This is the opinion of the Rosh, the Tur, and the Ri. Their reasoning is that Rabbi Yochanan was a single opinion against Rav and Shmuel. However, the Bahag and the Rambam ruled like Rabbi Yochanan. Previously in siman 16 regarding the prohibition of "it and its offspring," everyone agrees to this logic that the seller would have informed the buyer, see there. The commentators on the Shulchan Aruch distinguished between one and the other (Shach subsection 11 and Taz subsection 6; and see in Even Ozer and in Panim Meirot; and see in the Gra subsection 9 who remained in further study, and delve into this).