Siman 317

The Rambam wrote in chapter 5, law 5: Two people who deposited two males with a shepherd, one a בכור and the second a פשוט, and one of them died—the shepherd places the second one between them and departs, and it is a doubtfully-sanctified בכור, and the two of them divide it, for neither of them recognizes his own. Thus far his words. And so wrote the Tur and Shulchan Aruch. And it must be understood, for in Bava Metzia (37a) the Gemara establishes that this deals with a case where they deposited them with the shepherd without his knowledge; for if they had deposited them with his knowledge, he would not be exempt by placing the living one between them and departing, for it would be incumbent upon him to recognize whose animal died, and if so, he would need to pay from his pocket for the one that died, see there. And this was explained in Choshen Mishpat, siman 300. And so wrote the Tosafot regarding this law in Bekhorot (18a, and see Lechem Mishneh). Why then did they not explain this? However, in truth, here this is not the issue, for this pertains only to monetary laws, but regarding the matter of the בכור there is no practical difference; for ultimately, this living one is a doubtfully-sanctified בכור and the two of them divide it and eat it according to the sanctity of a בכור when it develops a blemish. And also the other living animal that he would give from his pocket when they deposited with his knowledge, they would also divide and eat as non-sacred meat. Therefore, since regarding the law of the בכור there is no practical difference, they did not mention this here.

And know that regarding the two who deposited, where one deposited a bechor—if the kohen was the depositor (as the Taz wrote), it is simple that they shall divide. However, if an Israelite was the depositor, such as where he had not yet encountered a kohen, there is room for doubt: when we say that the living one remains now a doubtful bechor, is he obligated to give his half to the kohen since previously it was a certain bechor, or perhaps since in any event it is now a doubt, he need not give it to the kohen, according to the law of every doubtful bechor. And it appears that he must give it to the kohen, for the Israelite never had any right to it, and it is as if the kohen deposited it.

The Rambam further wrote: One who deposited a firstborn with a homeowner, and the homeowner placed it with his own non-firstborn, and one of them died and it is not known which one it was, the burden of proof is upon the claimant, and it is a doubtful firstborn. And even a priest who is a shepherd who placed his firstborn in the courtyard of a homeowner with the homeowner's non-firstborn, and one of them died, the burden of proof is upon the claimant, and they do not remove it from the homeowner's courtyard except with evidence, for it was with the knowledge of the owner of the firstborn that he placed it with the homeowner's non-firstborn. Thus far his words. And here the Rambam was concerned to clarify that we are dealing with a case where it was with the knowledge of the owner of the firstborn that he placed them together, for if not so, he would be liable to pay, and it would turn out that the living one would be given to the priest. This is not the case in the previous law, where there is no practical difference, since in either case both of them take the living one. But here, the bailee takes it and eats it in its blemished state when it was with the knowledge of the depositor, and if not, the depositor takes it and eats it in its blemished state (and the Tur and the Shulchan Aruch did not clarify this regarding one who deposits a firstborn etc. in section 2, that it deals with a case where he acted with his knowledge, because it is understood of its own accord; nevertheless, they should have clarified like the Rambam).

But regarding the law of a shepherd, they wrote in a different phrasing. This is the wording of the Tur: A shepherd who is a kohen who placed the animals in the courtyard of the owner, and one of them gave birth to a bekhor and it was mixed with those of the owner, and one of them died, we do not say that since he is his shepherd, he transferred ownership of his courtyard to him so that it should acquire the bekhor for him immediately, which would make it like two who deposited with one; rather, since it did not come into the hand of a kohen, he did not acquire it, and the owner is considered the possessor and may eat it in its blemished state. Thus far his words. And so it is in the Shulchan Arukh in section 3 in abbreviated phrasing, see there. And it is a dispute in Bekhorot (18), see there. The Rambam did not see fit to explain this because it pertains to monetary laws, and he alluded to it in what he wrote: "And even a shepherd who is a kohen," etc., meaning that we do not say that he transferred ownership of a place in his courtyard to him. And as for why he did not write "all his animals" like the phrasing of the Tur, it is because there is no difference between one or a hundred. And it is obvious that if he transferred the place to the shepherd with a kinyan, it belongs to the shepherd (see Shach subsection 1 and Taz subsection 4; and what the Pitchei Teshuva wrote in the name of the Chatam Sofer regarding a bekhor that was mixed with many sheep, this belongs to the laws of mixtures and has no relevance here, see there).