Siman 320

Everyone is obligated in the firstborn of a pure animal: Kohanim, Levites, and Israelites. The Kohanim and Levites were only exempted from the firstborn of man and the firstling of a donkey, as I wrote at the beginning of siman 305, but not from the firstborn of a pure animal. It is simple that the Levite gives his animal's firstborn to a Kohen just like the Israelite; however, regarding the Kohen, the firstborn is his own. In this time, he must wait until it develops a mum and then he may eat it. In the time of the Mikdash, he would offer it upon the altar—its fat and its blood—and its meat and its hide were his. The meat is forbidden to an Israelite, and only the Kohen and the members of his household may eat it in Jerusalem, according to the law of all kodashim kalim. Seemingly, it would appear that in the time of the Mikdash, one need not trouble oneself with a doubtful firstborn to keep it until it develops a mum, but rather one should offer it as shelamim; if he is an Israelite, he gives the breast and thigh to the Kohen, and they eat it under the category of a firstborn. Their time of consumption is equal—two days and one night—as we learned in "Eizehu Mekoman." However, it is impossible to do so because of the application of the blood, which is not equal; for shelamim require two applications which are four, and a firstborn requires one application, as we learned there.

It is a simple matter that the animals of a cheresh, shoteh, and katan are holy with the sanctity of bechorah. Even though their owners are not commanded in the mitzvot, nevertheless, the sanctity of a bechor depends on the animal and not on the owners. And even though the verse speaks regarding the owners, as it is written: "All the firstborn... you shall sanctify..." and "If there be a blemish in it... in your gates you shall eat it," nevertheless, the sanctity of the bechor depends on the animal and not on the owners, as it is written: "Sanctify to Me every firstborn, whatever opens any womb among the children of Israel, in man and in animal; it is Mine." Behold, the animals of the collective of Israel were sanctified such that their firstborns shall be holy, and a cheresh, shoteh, and katan are also within the collective of Israel. And it is obvious that women are obligated in this mitzvah, as it is not a positive time-bound commandment, and furthermore for the reason we explained, that the animals were sanctified. Likewise, a tumtum and an androgynos are obligated in this mitzvah. The general rule of the matter: the first to open the womb of any pure animal is holy with the sanctity of bechorah. Regarding an ownerless animal, I have not found in any posek that it should be exempt from bechorah, but in the Tosefta, chapter 2 of Bechorot, it is explicitly stated that an animal of the wilderness is exempt from bechorah, and this refers to one that is ownerless.

An animal belonging to two owners is liable for bechorah. Even though it is written, "All the firstborn... of your herd and of your flock," which implies singular language and not partnership, nevertheless, it is written in another verse, "and the firstborn of your herds and of your flocks," which includes even a partnership. That which is written "of your herd and of your flock" is to exclude the partnership of a son of Noah (Chullin 135b), for if an Israelite is a partner with a son of Noah in an animal, it is exempt from bechorah, as we do not read regarding it "the first issue of the womb among the children of Israel." Even if the son of Noah has a small portion in the mother or in the fetus, it is exempt from bechorah. And even if only the ear of the mother or the offspring belongs to him, it is exempt (Bechorot 3a), as it is written, "Sanctify to Me every firstborn... among the children of Israel," but when another has any portion whatsoever, this is not "every firstborn" among Israel. And so it is written, "all your livestock you shall remember, the first issue of ox and sheep," that it must be "all your livestock," meaning the mother is yours. From this we learned that the animal is not liable for bechorah unless the entire fetus and the entire animal belong only to an Israelite (ibid.).

And know that that which we wrote, that even if only the ear belongs to him it is exempt, we wrote according to the wording of the Gemara there which says: And how much must the partnership be etc. Rav Huna said: Even its ear. But Rashi explained: Even if he has no partnership except in the ear, it is not sanctified. And so wrote the Tur, and this is his wording: And even if he has no partnership with him except in the ear, whether in the mother or in the fetus, it is exempt, see there. And our teachers hold that it is not specifically that the entire ear must belong to the idolater, but even a portion in the ear, for what is the difference in this? (And even though it says there: Rav Nachman challenged this: Let him say to him, "Take your ear and go," which implies that the entire ear is his—they hold that according to the conclusion, where we rule like Rav Huna because we require "all the firstborn" and "all your cattle," there is no difference between the entire ear and a portion of it; so it appears to me to say according to the explanation of Rashi and all the poskim, and examine this closely).

However, in the words of the Rambam at the beginning of chapter 4, one must be precise, for he wrote that if one was a partner in a cow or in a fetus, even if he had one in a thousand in the mother or in the offspring, it is exempt from the law of the firstborn. If he had in one of them a single limb, such as a hand or a foot, we see: if it were to be cut and it would be a blemish, it is exempt; and if it is possible to cut the limb of the non-Jew and it would not be disqualified, it is obligated in the law of the firstborn. Thus far his words. And our teacher, the Beit Yosef, asked: how can you find a case where one cuts a limb and it would not be a blemish? And he answers: for example, where there was an extra finger on its hand or its foot and there was no bone in it, see there (in the Kesef Mishneh and in the Lechem Mishneh). And the difficulty is manifest; and furthermore, who compelled the Rambam to this, and where did he find this in the Gemara?

Therefore, it appears in my humble opinion that for the Rambam, the words of the Gemara there were difficult, where Rav Huna said "even its ear," which implies that the entire ear is his, and afterwards it concludes that we require "all the firstborn" and "all your cattle," which implies even a portion in its ear, as the Tur wrote. And afterwards Rav Yehuda said "even a minor blemish," see there. According to this, it is explained that if he has a portion in the generality of the animal, even one in a thousand, it exempts, and it is not dependent on a blemish, since we do not read concerning it "all," for behold, he has one in a thousand in the vitality of the animal. But if he has a specific limb, it depends on a blemish. According to this, that which Rav Huna said, "even its ear," this is when he has the portion of the ear from the cartilage and above, for in it the blemish depends; but from the cartilage and below, we read concerning it "all," since even when this thing is missing from it, it is not changed in any way. And so too regarding its foreleg and its hindleg, if he has the flesh and the bone of the foreleg or the hindleg, or even the bone alone, it is exempt, for in the bone the blemish depends, as is written in chapter 7 of Biat Mikdash. But if he has a portion only in the flesh, even all the flesh of the foreleg or the hindleg, it is obligated, for in the flesh a blemish does not depend (as appears in my humble opinion; and see Derisha, and Shach subsection 3, and Taz subsection 4, and delve into this).

And behold, our teachers the authors of the Tosafot in Bekhorot there wrote like all the poskim, but in the chapter "HaSokher Et HaPoel" (71a, s.v. Rabbi Elazar) they wrote, and this is their wording: And in Bekhorot the Amoraim disagree regarding what the idolater must acquire from the animal; there is one who says he must acquire something that renders it a treifah, and there is one who says even its ear, and it seems proper to be stringent and to transfer ownership of something that renders it a treifah, etc., and it is sufficient that he acquire it for a perutah, and even though it is worth more, there is no concern due to "nullification of sale," for we are witnesses that the Israelite fully intends to transfer ownership in order to be exempt. Thus far their words. And it is not understood why they were stringent, for does the Shas not conclude explicitly that there is no difference, and the dispute stands as it stands? And even though it says afterwards that Rabbi Yochanan also disagrees with Rava and Rav Chisda, nevertheless they hold that it is not decisive for the halacha and they stand two against two. And the acharonim wrote that one should be stringent like their words (Shach subsection 3 and Taz; and that which the Shach wrote that also in the Hagahot Mordechai in Yevamot it is written so, see there that it does not deal with this law at all, and examine this).

Therefore, one who receives an animal from a gentile to care for it, and the offspring are to be divided between them, or a gentile who received from an Israelite in this manner, these are exempt from the law of the firstborn, as it is said: "the first to open the womb among the children of Israel," implying that it is not exempt until everything belongs to an Israelite. And there is no distinction whether he can remove the gentile with money so that the entire animal remains before him or not; even if he can remove him, nevertheless, now they are partners. And so too, an animal of arnona—which is when the minister takes a tithe of the animals—the hand of a son of Noah is considered to be in the middle, and it is exempt from the law of the firstborn (Pesachim 6a). And this is specifically when the Israelite does not have permission to sell any animal until the minister takes his portion; but if it is arranged in such a way that the minister's scribe records every animal that is born, and up to ten animals the Israelite has permission to sell them, and only when the tenth is born will the minister take it, certainly regarding the previous nine it is not called "his hand is in the middle," and they are obligated in the law of the firstborn (Pitchei Teshuvah, subsection 1, in the name of Rabbi Mordechai Ziskind).

Our teacher, the Rema, wrote regarding this law in section 5, and this is his wording: Even if he can remove the ruler with money, his hand is considered to be in the middle and they are exempt, since the primary lien of the ruler is upon the animals; but if they stipulated at the outset that he would give him money for the offspring, he is liable for bekhorah. Thus far his words. And it is not similar to what will be explained regarding an Israelite who received sheep from a son of Noah, where even if the initial stipulation was for money, nevertheless it is exempt for the reason that if he does not find money, he will take animals. This reasoning is in the Gemara (Taz); it is different there because the primary animals belong to the son of Noah, which is not the case with arnona where the primary animals belong to the Israelite. This reasoning is written in the Terumat HaDeshen in his rulings, siman 130, see there. Therefore, also in the law of section 8, even if the discussion was regarding money, it is exempt since the Israelite received his animal (and therefore the Rema did not write this law in section 3 regarding one who receives an animal from a gentile, and it is obvious that conversely, regarding a gentile who received from an Israelite, this law is not relevant at all, for he received it for offspring and not for money, and if in truth he only received it for money, he is nothing more than a mere employee and partnership is not relevant in this, and delve into this).

And know that that which he wrote, that even if he can remove it with money they are exempt regarding arnona, certainly this is so according to the approach of Rashi in Pesachim (6) and so the Rif ruled there. However, according to the approach of the Tosafot there, who read in the Gemara "and that is when he cannot remove it," and so it is in the Tosefta chapter 2 of Bechorot, that an arnona animal is obligated in bechorah, see there, and it deals with a case where he can remove it with a zuz. And the Tur leaves it undefined, and in the Rambam the law of an arnona animal is not mentioned at all. And perhaps because he mentioned in chapter 4 the law of one who receives an animal from a gentile, he did not need to mention this; even though they are not similar, for there the essence of the animal is his, which is not the case with arnona as I wrote in the previous section, nevertheless he holds there is no distinction in this, and automatically we know that his opinion is like the opinion of Rashi and the Rif, for if not so, he should have written the law of arnona. And one of the great Acharonim was very concerned for the approach of the Tosafot, especially since the Tosefta supports this (the Gra, subsection 7).

All of our teachers have agreed that in this time, it is a mitzvah to enter into a partnership with a gentile regarding an animal before it gives birth to the firstborn in order to exempt it from the law of the bechor. Even though one is divesting its sanctity, this is much preferred so as not to come to a stumbling block by benefiting from its shearing or its labor and the like. Even though it is possible to inflict a blemish upon the bechor before it is born and not divest it from the hand of the kohen, certainly this would be much better, but we are not experts in this; thus, of necessity, one must sell it to a gentile or enter into a partnership with him. It has already been explained that partnership is effective whether in the animal or in the fetus. However, to transfer ownership of the fetus alone is not effective, for it is a "thing that has not yet come into the world," as I have written in Choshen Mishpat siman 209. It is not effective unless he transfers ownership of the mother to him in order to acquire the fetus, like a palm tree for its fruit. But even in this, the Tur wrote that not everyone is expert in this—meaning that if another person sees him doing so, he will think that transferring ownership of the fetus alone is effective. Therefore, it is better to transfer ownership of a portion of the mother or to sell her entirely, and such is the custom. (And the Shach, in subsection 5, wondered at our teacher, the Rema, who wrote to do so, to transfer ownership of the mother for the fetus, see there; and it appears to me that he only came to rectify the words of the Mechaber, who wrote that transferring ownership of the fetus is not effective, therefore he wrote that in such a case it is effective).

And how is the kinyan performed? Our teachers, the authors of the Shulchan Aruch, wrote in section 6, and this is their wording: And the kinyan shall be that he receives a perutah from the gentile and conveys to him the place where the animal is standing, and the place conveys to him a portion in the womb; or that he receives money from the gentile and the gentile pulls the animal into his domain or into a simta, for then meshikhah conveys to him along with the money. Thus far their words. The explanation of the matters is that we have already explained in Choshen Mishpat siman 194 section 10 that the kinyan of a gentile regarding movable property is, according to the opinion of Rashi, specifically with money, and according to the opinion of the Rambam in the first chapter of Zekhiyah, he acquires whether with money or with meshikhah, and according to the opinion of Rabbeinu Tam, only with meshikhah alone and not with money. And with the opinion of Rabbeinu Tam most of our teachers agreed, and we wrote there that such is the primary ruling. However, specifically regarding the matter of a bekhor, our teachers, the authors of the Shulchan Aruch, were stringent in this siman to satisfy all opinions and to perform both money and meshikhah, and this is merely a stringency due to the severity of kodashim outside the Temple (the Gra, subsection 11, and there in Choshen Mishpat, see there).

And our teachers, the authors of the Shulchan Aruch themselves, above in siman 132, section 2, regarding the matter of wine of gentiles, and in siman 146, ruled that meshikhah effects acquisition, see there. And our teacher, the Beit Yosef himself, above in siman 132 there, transcribed the words of the Rambam that even with money one effects acquisition, as he wrote there in section 13 (and see there in the Shach, subsection 17, and this is according to the Rambam). And the Tur indeed did not write so there, only meshikhah, as we explained there. And here, the Tur also was stringent that one must satisfy even the opinion of Rashi, see there. And meshikhah is not effective in a public domain, but rather either into the domain of the buyer, or into a domain belonging to both of them, or into a simta, and this is a place to the side even in a public domain where the masses do not walk. And the details of these laws were explained in Choshen Mishpat siman 198, and there it was explained that hagbahah is also effective, but mesirah is not effective, see there. And for this reason, the Tur and the Shulchan Aruch wrote that sometimes he has no place for a meshikhah that is proper according to the law; therefore, it is better that he should acquire for himself the place where the animal is standing, and he will acquire the animal by the principle of his courtyard. And when there is a place for meshikhah, such as when the buyer lives near him or there is a simta there, he should perform meshikhah.

And since we have explained that the essence of the law is only meshikhah, it would therefore seem appropriate to say that if he only transferred ownership to him via meshikhah alone or via kinyan chatzer, it would be effective to exempt it from the law of bekhorah, and such is the opinion of several great authorities. However, the finalization of the price is a hindrance, for if he did not finalize a price with him for the animal or for a portion of it, all the kinyanim are not effective, as I wrote in siman 132. Therefore, one must wonder about the later authorities who cited from the Maharil that even ex post facto it is not effective without both kinyanim (Taz subsection 7, and Shach subsection 8, and Bach and Derishah); why were they stringent even ex post facto? Our teacher, the Rema, in a responsum (end of siman 87) ruled explicitly that ex post facto it is exempt from bekhorah even with meshikhah alone (and the Gra ruled accordingly in subsection 11), and one must deliberate on this for a practical ruling. (And know that from the Taz subsection 7 it is clarified that the transfer of the place effects acquisition by way of kinyan agav, see there; but from the Tur and Shulchan Arukh it is implied that it is by way of kinyan chatzer, and see the Hagahot HaGra. We have already explained in Choshen Mishpat at the end of siman 194 that kinyan chatzer, kinyan agav, and kinyan sudar are effective with a gentile, see there; and similarly, a Jew acquiring from a gentile, his kinyan is like a gentile from a Jew, see there thoroughly).

Any method that they are accustomed to use for acquisition in that place, if it is a fixed custom, constitutes an acquisition even regarding a bekhor, as I wrote in Choshen Mishpat siman 201. Therefore, if the custom is to acquire through earnest money, that is, "aufgab" which they call "zadatok," or if they acquire through a "hand-schlag" and the like, if it is a fixed custom, it is effective and he is exempt from the law of bekhorah. And regarding whether a custom is effective in a case where according to the law it is not effective, such as an acquisition of something that has not yet come into the world, we explained there that there is a dispute, and the majority of opinions hold that it is effective. Similarly, an acquisition based on the law of the land is effective. Therefore, if according to the law of the land they acquire movables through a document, as is the custom in our country where they sell merchandise with a "contract," and according to the law of the land it is effective, it is also effective regarding a bekhor. And similarly, we clarified there that a rabbinic acquisition is effective even for Torah matters; see there. And all of these are only after the price of the sale has been finalized, for before the price of the sale is finalized, no acquisition is effective, as I wrote.

There is one who says that a gift or hefker is not effective regarding a bekhor (see the Hagahot on section 25). The intention is not that according to the letter of the law it is not effective, for why should it not be effective? Is a gift not like a sale in every place? And hefker is also explained in the Tosefta as being effective, as I wrote at the end of section 2. Rather, the intention is that it is close to coming to a pitfall. For it is well understood that in a sale there is a recognizable act, as he receives money and performs a transaction, but a gift is like mere jesting and he does not give with a whole heart. And also regarding hefker, certainly if he declares it hefker and takes it outside to the edge of the field and does not look at it and does not occupy himself with it, it is effective; but that he should say he declares it hefker while it is in his courtyard is nothing but mere words. And know that when he sells it and receives a small amount as a down payment, he should establish the remaining money against him as a loan until a certain time, and certainly if the buyer provides him an arev kabbelan it is even better. And there is one who is concerned to say that establishing a loan is not effective, but we have already explained in Hoshen Mishpat siman 190, section 3, that there is no concern in this at all; see there.

There is one who wrote that even though with money alone it is certainly a case of a doubtful bechor, nevertheless, if the buyer is a powerful person who will certainly take it from the Israelite if it gives birth, it is exempt from bechorah even while it is in the domain of the Israelite and is considered to belong to the powerful person (Tzemach Tzedek, siman 62). In my humble opinion, these are matters that have no measure, for if so, even without money we should say so; rather, what can you say? He is a robber, and until the time of the robbery, it is in the domain of the Israelite. If so, even with a kinyan of money it is so, unless it is the custom to buy with money, and if so, one does not need power for this. And this is obvious: that in a place where it is not a purchase according to the law nor according to custom, and the Israelite can cancel the purchase and the buyer is not a powerful person, and also a complete kinyan of money did not occur—such as if they agreed that he would give him such and such in cash and he gave him less than this amount—and it gave birth in the domain of the Israelite, it is a certain bechor (ibid.). And if an Israelite bought a cow from a gentile with a complete kinyan, and the cow was stolen from the gentile, and the gentile agreed to give the Israelite another cow, and afterwards, before he received the other one from him, the thief was found, and afterwards the cow gave birth, it is exempt from bechorah, for as soon as he agreed to give him another, the first one stands in the domain of the gentile; and so too if he agreed to return his money to him (as is implied in the Responsa of the Rema, end of siman 87). And if a gentile rented a cow from an Israelite for a period of time, and within the time it gave birth to a bechor, it is liable for bechorah, for its essence stands in the domain of the Israelite, and we do not say "a rental for a day is a sale" except regarding ona'ah, as is proven from several places; and all the more so if he borrowed a cow. And so too the reverse: when the Israelite rented or borrowed from him, it is exempt from bechorah. And a gentile who stole a cow from an Israelite and it gave birth to a bechor while with him, if it is after despair, it appears that it is exempt from bechorah, for it is like hefker; and if before despair, it is liable. And if he sold the cow on Shabbat or Yom Tov, even though he committed a prohibition, the purchase is valid, as I wrote in Choshen Mishpat siman 208, see there (as above). And a sale to a gentile minor, male or female, it appears does not avail, and there is one who is doubtful about this (see Chatam Sofer, siman 317). And a sale to a servant in his house, it appears also does not avail, for it never left his domain, and especially since the sale is a weak sale. However, when it is impossible in any other way, at any rate one should see to make a complete sale with all possible kinyanim: money, and meshikhah to a side alley or the granting of domain, and the hand-clap, and the acceptance of a kinyan. And it has already been explained that in this time it is a mitzvah to sell a cow giving birth for the first time, and even if the man is not in his house, his wife may sell it even without his permission, for it is certainly pleasing to him, and one may act to the benefit of a person in his absence, just as she sells chametz when he is not in his house. And even though there is one who is doubtful about this, I do not know the basis for the doubt; and it appears more likely in my humble opinion that even if the wife is not in her house, one of the members of the household is able to sell it based on the reason that one may act to the benefit of a person in his absence.

One who receives sheep from a gentile for a fixed sum, where he appraised his animals for him at a fixed price and that he shall pay him by a certain time, and those offspring that will come from the sheep until that time they shall divide between them—and if they die or decrease in value the loss is upon the Israelite—even though they are entirely in his possession and are like his property, nevertheless the offspring are exempt from bechorah. And the reason is: since the sheep essentially belong to the gentile, and they and their offspring are liened to him such that if the gentile does not find money with the Israelite to collect he may collect from the animals and from their offspring, it is called "the hand of a gentile in the middle" and they are exempt from bechorah because they essentially belong to him. And specifically they and their offspring when they give birth are exempt, but the offspring of offspring are obligated, for they belong to the Israelite and the gentile has no lien upon them. And if he established the offspring in place of their mothers, the offspring are exempt and the offspring of offspring are obligated. This is the rule: that in the receiving of sheep, the sheep are under responsibility, and consequently the offspring are also under responsibility, but not the offspring of offspring; and when he established the offspring, their offspring followed after them, and so on forever, even though the receiving was for a sum of money.

Our teacher, the Rema, wrote: A gentile creditor who received an animal from an Israelite to raise it, and he desired a portion of the offspring, and the Israelite said he would give him money, and since his hand was firm over his creditor he was certain that against the gentile's will he would have to take money, nevertheless it is exempt from the law of the firstborn since the gentile did not want to tend to it except for a portion of the offspring. Thus far his words. And these matters require clarification.

And know that the source of the law is from the Terumat HaDeshen in his rulings (siman 129) regarding an incident that occurred where a Jew gave his animal to a gentile to raise it and said that he would give him money for his labor, but the gentile did not want anything except to have a portion in the offspring. And the gentile was as a debtor to the Jew, but the debt was not related to the matter; rather, the Jew was certain that because he owed him money and "the borrower is a slave to the lender," he would later compel the gentile to accept money and not a portion in the offspring. And they exempted it from bekhorah on the grounds that since the gentile did not want anything except a portion in the offspring and accepted it on this condition—and granted that he later compelled him to accept money, this is like one who purchases from him against his will—nevertheless, at the time of the raising, the hand of the gentile was in the middle. However, there is a question in this: with what did the gentile acquire the offspring? Since he has no portion in the animal itself, the acquisition of the offspring is a d'shlaval. And on this, the Terumat HaDeshen answered that we say it is as if he said to him, "acquire the animal for its offspring," see there. And if you ask what kinyan was there in this, the answer is that there is meshikhah here and also kesef, for the expenses of the sustenance are like a kinyan kesef (and this is the intent of the Shach in subsection 9).

But there are some of the great authorities who hesitated greatly regarding this permission, asking why we should say that it becomes like one who said to him "acquire the animal for its offspring" (Noda BiYehuda, Second Edition, siman 191). Furthermore, the acquisition through money is not clarified. However, in this matter, one may rely on the majority of the poskim that the primary acquisition is meshikhah. Also, regarding a thing that has not yet come into the world, one may rely on the opinion of the Rambam that once the fetus is recognizable, it is considered as having come into the world. However, we have already explained in Choshen Mishpat siman 209, section 6, that there is no proof from the Rambam, for only regarding kiddushin did he concern himself to say so as a stringency, but not as a leniency; see there. And it is good to tell the gentile that he should cut its ear, for it has already been explained that in this time, placing a blemish in a bekhor is only a rabbinic prohibition, and regarding telling a gentile in a case of a rabbinic prohibition, our teacher, the Rema, is sufficient to rely upon that there is no prohibition here at all (see Noda BiYehuda, Second Edition, siman 192, who wrote this advice).

He further wrote: A gentile who received the animal of an Israelite to care for it, and he has no share in it but only accepted responsibility for it, it is liable for bechorah. Thus far his words. And it is simple that on account of responsibility alone one cannot exempt from bechorah. And if he sent a messenger to sell his animal and it is not known if he fulfilled his mission, one must be stringent (Mishneh LaMelech).