Siman 61

It is written in the Torah in Parashat Shoftim: "And this shall be the due of the priests from the people, from those who perform a slaughter, whether it be ox or sheep, that they shall give to the priest the foreleg, the jaws, and the maw." Every kosher animal is included in this, for goats are also included in "sheep," as it is written: "a sheep of the lambs and a sheep of the goats." And regarding Rivka it is written: "Go now to the flock and take for me from there two kids of the goats." However, a wild animal is not included in this. Therefore, the Torah did not write "beast" (behemah), because a wild animal is included in the term "beast," as it is written: "This is the beast which you shall eat: the ox, the sheep of the lambs, and the sheep of the goats, the hart, and the gazelle, etc." But here, the Torah did not obligate a wild animal, and therefore it did not write the term "beast" there. And know that regarding an ox, a lamb, and a goat, there is no distinction between a small one and a large one, for even a day-old ox is called an "ox," as it is written: "When an ox or a sheep or a goat is born" [Bava Kamma 65b].

And even though it is not the practice regarding a chaya or similarly regarding a bird, nevertheless, regarding shaatnez that comes from a goat and a ewe, one is obligated in matanot; since it is written "if a bull, if a lamb" and it is not written "a bull and a lamb," we include shaatnez that comes from a goat and a ewe, as both are subject to the obligation [Levush]. And the same applies to a koy, which is a creature unto itself; the verse included it from the redundancy of "if," that the matanot should be practiced with it, for it is not a species of chaya [ibid.]. And this is the opinion of the Rambam in the ninth chapter of Bikkurim, see there [see Beit Yosef and Bach and Drisha/Perisha].

And regarding a koy that comes from a domestic animal and a wild animal, if it is from a deer that mated with a goat, he is liable for half of the matanot from a "whichever way" argument (mi-ma nafshach). For if we do not concern ourselves with the seed of the father, then it is entirely a lamb and he is liable for all the matanot; and even if we do concern ourselves with the seed of the father, nevertheless, we certainly concern ourselves with the seed of the mother, and we hold that a lamb, even a partial lamb, is considered a lamb [Chullin 80a]. Therefore, he is liable for half of the matanot from a "whichever way" argument. However, regarding the second half, he is exempt, as he can say to the kohen: "Bring me proof that we do not concern ourselves with the seed of the father." Therefore, regarding a buck that mated with a doe, he is exempt from all the matanot, for regarding the half that is from the side of the mother, he is certainly exempt, and regarding the second half, he can say to the kohen: "Bring me proof that we concern ourselves with the seed of the father and I will give to you." This is the opinion of the Rambam, of blessed memory. And it appears to me that according to this, if one has two offspring, one from a deer that mated with a goat and one from a buck that mated with a doe, that from a "whichever way" argument he is liable for all the matanot from one of them. For if we concern ourselves with the seed of the father, he is liable for half from this one and half from that one, and if we do not concern ourselves, he is liable for all the matanot from the first one.

And all this is according to the opinion of the Rambam, who holds that that which the Torah included as a koy is only regarding a koy that is a distinct creature and not one that comes from two species. However, the Rosh, of blessed memory, holds that the Torah included every type of koy, and even regarding a he-goat that mates with a doe, one is obligated in all the matanot, for so the Torah decreed, and certainly regarding a buck that mates with a she-goat. And according to the opinion of the Tur, it is only in such a case and not regarding a he-goat that mates with a doe, see there. And his opinion is that since it is possible to say that we do not concern ourselves with the seed of the father and there is not even a partial seh here, there is no logic to say that the Torah included it in the matanot. However, it does not appear so, and so wrote our teacher Yerucham explicitly: A koy, which is a doubt whether it is a behemah or a chayah, that was born from a he-goat and a doe or the reverse, is obligated in all the matanot. Thus far his words. And so wrote the poskim in the name of Rashi, of blessed memory, and so wrote our teacher, the Beit Yosef, in his great book, but in the Shulchan Aruch he brought only the opinion of the Rambam, see there [and the Levush brought his opinion and did not mention the opinion of the Tur].

The gifts of the priesthood do not apply except to chullin, and not to kodashim, nor to a bechor, whether unblemished or blemished, because they are already gifts of the priesthood and the sanctity of the mitzvah does not take effect upon this sanctity. And regarding all kodashim, if he consecrated them first and afterwards a blemish occurred in them, they are exempt from the gifts; but if he consecrated them while they had a blemish, they are obligated in the gifts because the sanctity of the body did not take effect upon them, and this is like one who consecrates wood and stones for their value. And this is specifically when they have been redeemed, but before redemption they are exempt, for behold, the sanctity of value takes effect upon them, and any type of sanctity exempts from the gifts [so it is proven in the Mishnah of HaZroa, 130, see there]. But if their consecration preceded their blemish, they are exempt even when they have been redeemed, for even disqualified kodashim that were redeemed possess sanctity [ibid.], except for the bechor and the animal tithe, which are always exempt from the gifts even if they were born with their blemish, for behold, in the case of a bechor it is given entirely to the kohen, and similarly with the animal tithe, the sanctity takes effect even upon a blemished animal, as is explained in the Rambam, chapter 6 of Bechorot.

And a bechor that was mixed with other animals, if it was before the bechor came into the hand of a kohen, they are obligated to give the matanot from all of them, for regarding each and every one the kohen can say, "Give me its matanot," and you cannot say, "Perhaps it is the bechor," for if so, "Give me all of it." And such is the law regarding a doubtfully-born bechor, which is obligated in matanot from whatever the case may be: if it is a bechor, all of it belongs to the kohen, and if it is not a bechor, it is obligated in matanot. But a bechor that was given to a kohen in its blemished state and he sold it to a Yisrael and it was mixed with others, if many people slaughter them and each one slaughters one animal, they are all exempt, for each one can say to the kohen, "Mine is the bechor," and the burden of proof is upon the claimant. And if one person slaughters all of them or two of them, they only exempt one animal for him, for there is only one bechor here. And two bechorot that were mixed, and one person slaughtered three animals, they exempt two of them for him, and so on forever. And one should not ask, in a case where a bechor was mixed with many animals, let us follow the majority and they should all be obligated in matanot, for in matters of money we do not follow the majority.

The Rambam wrote in chapter 9 of Bikkurim, law 3: A doubtful bechor is liable for the matanot from every side, for if it is a bechor, take it to the kohen, and if it is not a bechor, its matanot belong to the kohen. And if there was a doubt regarding two and the kohen took one out of doubt, the second is exempt from the matanot; they treated it as if the kohen acquired it and gave it in its blemished state to the owners. Thus far his words. And this is what the Sages, of blessed memory, said in several places: They treated one who does not acquire as one who acquires. From this, the great Acharonim learned that if a bechor was mixed with several animals and the kohen took one of them, they are all exempt from the matanot even when they are in the possession of one person [Pri Chadash subsection 31 and Tevuot Shor, and it is implied from the Ran in the chapter "HaZroa" and see the Beit Yosef]. And it appears to me that this is when he took it by way of the priesthood with the consent of the owners, but if he took it by force, he is like a robber and does not exempt the mixture through this.

These matanot possess no sanctity, and therefore they do not render the meat tevel; that is to say, they do not forbid the meat as tevel such that it would be forbidden to eat prior to the separation, like terumah which forbids the produce prior to the lifting. Therefore, the kohen may sell them or give them to dogs, because they possess no sanctity. Nevertheless, it is a mitzvah to separate them immediately after the shechitah, for the zealous hasten to mitzvot. The obligation is upon the shochet even if the animal is not his but belongs to another Israelite, for the Merciful One made it dependent upon "those who slaughter the slaughtering," as will be explained. Therefore, when he has performed a valid shechitah and it is also found valid upon inspection, the obligation of the matanot immediately takes effect upon it. [That which was said that he may feed them to dogs, this is when the meat has spoiled, for otherwise it would be a degradation of a mitzvah].

And even if he did not slaughter for the purpose of eating the meat, but rather for medicine or for the needs of dogs and the like, nevertheless he is obligated in the matanot, for the Merciful One made it dependent upon slaughtering and not upon eating. However, if he slaughtered and it was found to be a tereifah, he is exempt from the matanot. And so it is taught in the Sifrei: "From those who slaughter the slaughtering"—excluding a tereifah, for a tereifah is not included in the term "slaughtering" and is merely a death, as the name "slaughtering" only applies to that which is fit for eating, as it is written: "In all the desire of your soul you shall eat meat etc." and "you shall slaughter from your cattle etc." Therefore, even in a case of a doubtful tereifah he is exempt, and even if it became a tereifah due to a stringency of the later authorities, it is a tereifah and is not fit for eating, and he is exempt from the matanot.

We learn in the Gemara [page 75]: Rav Hisda said: One who slaughters a treifah and finds within it a live nine-month-old fetus, it requires shehitah and is liable for the zeroa, lehayayim, and keivah; see there. From this we have learned that a ben pekuah, which is permitted through the shehitah of its mother, is exempt from the matanot, for it is not included in the category of "those who slaughter a sacrifice," since it does not itself require shehitah. And even when it has stepped upon the ground, where it requires shehitah due to appearance, as was written in siman 13, regarding matanot it does not seem appropriate to obligate it due to appearance, for there is no issue of appearance in this, as who is to say that he did not give them to a kohen and the kohen sold them [and so wrote the Peri Hadash].

The zeroa is the hand, which is the leg on the side of the face, and one gives to the kohen one hand. Since it is written "hazeroa" with the definite article, it implies the primary one, which is the right one [Gemara]. One must give to the kohen two segments of it, meaning the second segment, which is from the end of the arkuba that is sold with the head until the third segment, and also the third segment until the palm of the hand, which is the wide bone of the shoulder that in the vernacular is called espalda, and some call it ryer, and in our language is called achsel. However, the lower arkuba is not included in zeroa, and thus did the Sages of blessed memory receive. It may be said that they learned this from the "boiled zeroa" of the Nazir's ram, which the Torah required to be boiled in its entirety [Chullin 98], and it is not the way to boil the lower arkuba together with the upper ones, just as even now they do not do so, as is known [and perhaps this is the intent of the Mishnah at the end of chapter Hazeroa, see there and examine carefully].

The lechayayim are the two cheeks that are on the right side and on the left side, and the upper jaw that is on each side and the lower jaw that is on each side. We learned this from that which is written "lechayayim," a plural expression. One cannot say that it refers to the upper and lower jaw of one side, for if so, it should have written "halachim" with a single yud, which also implies the two parts, as for one part it should have written "lechi." Therefore, from that which is written "lechayayim," it implies all of them.

And this is from the joint of the lower jaw until the prominence of the windpipe, which is the large ring, along with the tongue that is between them. And he must give them with the skin and with the wool that is on the head of the sheep and the hair that is on the head of the goats. And we learned this from that which is written "and the cheeks" (ve-halhayayim) with the definite article "Heh," to include all of these [Gemara]. And he is not permitted to scald the head nor to flay its skin before he gives it to the kohen. And even in a place where they are accustomed to flay the head, nevertheless, he shall not flay the cheeks. And even though he wants to give them with the skin to the kohen, nevertheless, he shall not do so, for perhaps it is the will of the kohen to eat it by scalding alone and without flaying the skin. But the foreleg, in a place where they are accustomed to flay, if he wants, he flays it and gives it and its skin to the kohen, because it is not the way to eat the foreleg by scalding alone, and the kohen too will flay the skin; which is not the case with the cheeks, as it is the way to eat them by scalding alone because the skin is very thin [from the words of the Rambam there it is explicitly implied that even the foreleg should not be flayed, see there and see the Bach].

And the abomasum must be given to him with all its fat, internal and external [Gemara], and we also learned this from the superfluous letter "Heh" in "v'hakivah." And so all the poskim ruled. And I wonder, for it is explained in the Gemara [49] that the priests were accustomed to permit the fat that is upon the abomasum, but we do not rule accordingly, as I wrote in siman 64, that what is upon the "bow" is forbidden by the Torah and what is upon the rest is forbidden by custom or by law, see there. And if so, for us, who rule that it is treifah fat and the priests of this time do not eat it, why is it necessary to give them to the priest? For it has already been explained that the Torah exempted a treifah from gifts, and even in a treifah that is due to a stringency, as I wrote in section 9. And it is possible to say that since the meat of the abomasum is permitted for eating, one must also give the fat, just as one must give the skin and the wool. And our sages, of blessed memory, said [end of chapter HaZroa] that if the priests were accustomed to leave the fat for the owners, one does not need to give it to the priest; that is to say, even if this priest says "I do not wish to leave it," we do not heed him, since such was the custom. and automatically the same law applies to the skin and the wool from the shoulder and the cheeks: if they were accustomed to leave them for the owners, the law is also thus [Taz, subsection 7].

These matanot are only practiced among Israelites, but kohanim are exempt. And so we have learned in the Sifrei: "And this shall be the kohanim's due from the people" — and not from their brothers the kohanim, for kohanim are not included in the term "people." And this matter is explicit in the Torah regarding the service of Yom Kippur, as it is written: "And he shall make atonement for the holy sanctuary... and for the kohanim and for all the people of the congregation he shall make atonement." Behold, it is explicit that kohanim are not included in the term "people." And this is only when the kohen slaughters for himself, but not when he slaughters to sell, as will be explained with the help of Heaven in section 38.

And they ruled in the Gemara that regarding Levites, it is a doubt whether they are included in the category of "the people" or not [131]. Therefore, they are exempt from giving, for they can say to the kohen: "Bring me proof that I am included in the category of 'the people'." Nevertheless, if the kohen took them from the Levite, we do not remove them from his hand, because he can say to the Levite: "Bring me proof that you are not included in the category of 'the people'." And this is not similar to what we have established in siman 315 regarding a doubtful firstborn, that when a kohen seizes it we remove it from his hand, for there the doubt is regarding the essence of the firstborn, whether it is a firstborn or not, and seizing does not avail in a case of doubt. But here, it is certain that the kohen has a connection to these gifts, rather the doubt is perhaps the owner of this animal is exempt from this; the kohen can say: "Bring proof" [see Shach subsection 13 and Peri Chadash]. However, the Rambam, of blessed memory, ruled even regarding a doubtful firstborn that if a kohen seized it, we do not remove it from his hand, and it will be explained there with the help of Heaven. Nevertheless, our teacher, the Rema, wrote in section 23 that there are those who disagree here and hold that even if the kohen took them, we remove them from his hand. And their reasoning is that they compare this to a kohen seizing in a case of a doubtful firstborn and they do not make the distinction that we distinguished, and there we have established that we remove it from his hand, and if so, here it is the same. And for the law, the first opinion appears primary, and the Levush omitted the opinion of those who disagree; see there.

However, it is certainly so that the Israelite should not give them to a Levi, and when he has given to a Levi, they are removed from the hand of the Levi, and it is a gift given in error; for it is written, "and he shall give to the kohen," and a Levi is not included in "kohen." For we find the opposite, that kohanim are called Levites, as it is written, "And the kohanim the Levites, the sons of Zadok," but that Levites should be called kohanim we do not find in any place. Therefore, even though there is one who is uncertain regarding this, nevertheless the primary halachic ruling is as I have written, and so wrote the later authorities.

And I have a question regarding this: since the reason the kohanim are exempt is because they are not included in the "people" as has been written, if so, women should be exempt from the gifts of the priesthood, for our sages, of blessed memory, said in Shabbat [62a] that women are a people unto themselves and are also not included in the "people." And it must be said that in the language of the Torah they are included in the "people," as it is written: "Assemble the people, the men and the women, etc." And one cannot say that if so, kohanim are also included in this, for they too are included in the mitzvah of assembly; however, it is not comparable, for in any case, in a place where "people" is mentioned alongside kohanim, they are not included in this, but women are perforce included in this. And also from the service of Yom Kippur this is proven, for it is written: "And for all the people of the assembly he shall atone," and behold, women are also included.

One who slaughters for a kohen or a levi is exempt from the matanot, as has been written. And it appears to me that the same applies to one who slaughters for a minor, where the animal belongs to the minor, that he is also exempt, for the minor is not a bar mitzvah. Similarly, one who slaughters for a gentile is exempt; even though he will sell it to an Israelite, nevertheless, since at the time of slaughtering it does not belong to one subject to the obligation, it is exempt from the matanot, for the Merciful One made it dependent upon the slaughtering. Therefore, the sages taught in the Mishnah [134a]: A convert who converted [in ancient times] and had a cow—if it was slaughtered before he converted, it is exempt; after he converted, it is liable. If it is a matter of doubt, it is exempt, for the burden of proof rests upon the claimant, according to the law of any monetary doubt.

And know that in the Gemara there, it raised a difficulty from that which we learned in the fourth chapter of Peah, that "doubtful leket is leket," and we do not say "the burden of proof lies with the claimant." And we derive this from the verse, "vindicate the poor and the impoverished"—justify him from your own and give to him. And it is not similar to every doubt regarding private property, for since the Torah commanded to give to the poor person or to the kohen, one must yield from his own and the doubt is resolved stringently. And the Gemara answered: Here, the cow stands in a status of exemption; meaning, when you establish it upon its initial status, it was exempt since it belonged to a gentile. There, they stand in a status of obligation; see there. And according to this, if the cow was also in a status of obligation and afterwards a doubt arose regarding it, it is obligated.

And according to this, it appears to me that a Levi who married a woman and she brought him an animal, and it was slaughtered and there is a doubt whether it was slaughtered before the marriage or afterward, he is obligated in the matanot; for its initial status when it was with the woman stood in a status of obligation. It is understandable regarding a kohen in such a case, when he married a woman and there is a doubt when it was slaughtered, it is certainly exempt, for even if it was slaughtered before the marriage, she is able to give it to this kohen. But the Levi is not permitted to receive the matanot of others, as I wrote in section 17, and in a case of doubt it appears that he is obligated to give to a kohen [see Ran Nedarim 7, beginning with "And regarding," and in the Rosh section 3, and in the Korban Netanel subsection 10, and in the Shach Yoreh Deah siman 258 subsection 14, and examine carefully]:

Later in siman 257 it will be explained that one should not give all the tzedakah to one poor person, see there; and the same applies regarding the gifts of the priesthood, that he should not give them to one kohen. And thus our sages, of blessed memory, said in Eruvin [63a]: Anyone who gives his gifts to one kohen brings famine to the world. Therefore, he should give to several kohanim. Nevertheless, he should give to each one a respectable gift, and thus our sages, of blessed memory, said [Chullin 132a]: the foreleg to one, and the abomasum to one, and the cheeks to two; and this is the phrasing: he shall divide to these two [Pri Chadash]. And with a large ox, he can divide the foreleg into two, to each one a single joint, because there is in this a sufficient amount for a gift. And the reason for all this is because it is written, "and he shall give to the kohen," it must be a proper giving [Rashi ibid.].

There is one who wrote that if one desired to give all the matanot to one kohen, it is permitted. And that which the Sages, of blessed memory, said not to give to one kohen, this is when he gives him his matanot forever; but in a merely incidental manner, he may give all the matanot to one [Pri Chadash]. And the proof for this is from the words of the Rambam, who wrote: One who desires to give the matanot to one kohen may give. Thus far his words. But the Tur and the Shulchan Aruch did not bring his words. And perhaps the reasoning of the Rambam is that since regarding chullin, in the source of the law, when the Sages, of blessed memory, said that he should give a respectable gift, they did not also say the opposite—that he should not give them to one kohen—it is implied that we have no concern regarding it when he gives all the matanot from one animal to one kohen in an incidental manner.

If there is no kohen there in the city, he shall appraise the matanot in money, for they possess no sanctity as has been written, and he shall appraise them at their value and not at less than their value, for there is in this a theft of the tribe, and he may eat them. When he finds a kohen, he shall give him the money. This is specifically if he appraises them prior to eating, but if he wishes to leave the appraisal until after eating, it is forbidden [Radbaz], for prior to the appraisal it is like theft. This applies when there is no kohen, but when there is a kohen, it is forbidden for him to appraise them and give the money to the kohen without his permission [ibid.].

And know that from the wording of the Tur and Shulchan Aruch, who wrote "he shall assess it in money," it implies explicitly that we rely on his own assessment and there is no need for others to assess as is the way of all assessments of beit din. And so it implies from the wording of the Rambam, who wrote: In a place where there is no kohen, he elevates the gifts in money and they eat, see there. And it implies explicitly that he himself elevates them in money. But from the wording of the Shas [134] which said "they elevate it in money," it implies that others shall assess the gifts. And it appears that their version in the Gemara was "he elevates" and not "they elevate." And so it implies from the Rif and the Rosh, see there. And the reason, it can be said, is that since meat is sold in the butcher shop at all times and at every hour, there is no need for this for an assessment of beit din. And know that the language of "elevation" does not mean to elevate more than their value, but rather a good assessment according to their value.

A kohen must not snatch the matanot even if the owners are later appeased, for it is written, "and he shall give to the kohen," and not that he should snatch them himself. And even to ask for them verbally he should not ask, because he is disgraced by this, and regarding the matanot kehuna it is written, "I have given them to you for greatness," meaning in a manner of authority and honor and not in a manner of disgrace. And this was the sin of the sons of Eli, that some of them asked verbally, as our sages, of blessed memory, said [Shabbat end of chapter 5]. Rather, if they give them to him in an honorable manner, he should take them. And at a time when there are many kohanim in the slaughterhouse, the modest ones pull back their hands and the gluttons take. And if this modest one was in a place where they do not recognize him as a kohen, he should take so that they do not say about him that he is not a kohen. And this is in a place where they do not recognize him, but in a place where they recognize him as a kohen through the lifting of the hands or through his ascending to the Torah first, he does not need to take. So it is implied in the Gemara [133, where it asks regarding Abaye, "and let him spread his hands," see there; and it requires further study why the Shas did not mention ascending to the Torah, and perhaps because he was the leader of the generation and fit to read in place of a kohen even if he were not a kohen, like Rav who read among the kohanim].

The kohen may eat the matanot in whatever manner the taste is pleasing to him, whether boiled or roasted, so that he eats them with appetite. And if all flavors are equal to him, he should eat them roasted and with mustard in a manner of greatness, in the manner that ministers eat [see Tosafot 132b, s.v. "Ein"]. However, when he sells or gives the matanot to others, there is no precision at all regarding how to eat them. Only when the kohen himself eats them, or when he honors another with them, is there reason to be precise to eat in a manner of greatness and honor, for regarding them it is written "for greatness," as has been explained.

If there is a kohen who is a Torah scholar, one should not give them to a kohen who is an am ha'aretz, for so commanded King Yehoshaphat [Chronicles II 31] to give the portion of the kohanim and the Levites so that they may be strengthened in the Torah of Hashem. Nevertheless, if there is no kohen who is a Torah scholar here, he should give them to a kohen who is an am ha'aretz and not wait until a chaver presents himself [Tosafot 136], for in the Torah it is written simply "kohen." And likewise, if the Torah scholar does not desire to take, he should give them to the am ha'aretz. And likewise, if the Torah scholar is wealthy and the am ha'aretz is poor, it is better to give more to the poor man [ibid. 104b, s.v. "and she gives"].

During the time when terumot and ma'asrot were practiced in the Land of Israel, everyone would give his separation to a kohen and a levi who was his acquaintance and friend, and it was considered even before he received the separations as if he had received them, as the Sages, of blessed memory, said [Gittin 30a] regarding acquaintances of a kohen and a levi, that he acquires it even before it reaches their hands. This is because the rest of the kohanim and levi'im have a removal of mind from this, and it is as if it reached the hands of the acquaintances [Rashi ibid.]. And regarding this, the Sages, of blessed memory, said concerning these gifts [Chullin 133a] that a kohen who is accustomed to receiving these gifts from a certain homeowner can grant them to an Israelite acquaintance of his, so that he may receive them from the hand of the homeowner who is his acquaintance; and when the Israelite receives them, it is as if the kohen received them and gave them to this Israelite.

And they only permitted this when the Israelite is a Torah scholar and it is a time of pressing need, and even then, only if the kohen is not a servant in the house of this Israelite who is granting him the gifts, for perhaps in his heart he does not desire to grant them to him, but he is compelled to do so because he is in his house [this is the explanation of the Rambam]. And similarly, if the kohen is a servant in the house of the one who grants them to him regularly, and now he grants them to a guest who is an Israelite Torah scholar staying in the house of his master who grants them to him regularly, it is also forbidden, for perhaps his will is not wholehearted to grant them to him and he is only compelled to do the will of his master with whom this Torah scholar is staying [this is according to the explanation of Rashi]. And all the more so, the kohen who is a servant in the house of an Israelite who grants them to him cannot grant them to his owner who grants them to him regularly, for there is no giving here at all [see the Derisha and the Bach there, and the Atteret Zekenim subsection 16 regarding what he wrote on the puzzling words of the Tur].

If he did not give the matanot to a kohen but rather ate them or destroyed them, he is exempt by the laws of man, for this is money that has no claimants; for when this kohen claims them from him, he will say to him: "I would not have given them to you, but rather to another kohen." And even if this kohen was among his acquaintances, nevertheless he can say to him that now it was not his will to give them to him. Nevertheless, he is liable by the laws of Heaven because of the robbery of the tribe. And it appears to me that if he had a kohen who is his acquaintance to whom he is accustomed to give always, and this kohen acquired them through an Israelite Torah scholar as I wrote in section 29, that he is liable to pay by the laws of man since we consider him as having acquired them. Nevertheless, this requires deliberation, and it requires further study for the law. And all this is when he already ate them or destroyed them, but when they are still in existence and it is not his will to give them to a kohen, we compel him to give them to a kohen.

Our sages, of blessed memory, said [131a] that one may give these gifts even to a Kohenet and fulfill his obligation, for that which is written, "and he shall give to the Kohen," includes even a Kohenet. And even if she is the wife of a Yisrael, since they do not possess sanctity in that they are not forbidden to non-Kohanim, she is permitted to have them. And it is not similar to terumah [Rashi], for in a place where it is written "the sons of Aaron," we say the sons of Aaron and not the daughters of Aaron; but here, where it is written simply "Kohen," even a Kohenet is implied.

And it appears to me that this law applies only to the gifts of the foreleg, the cheeks, and the abomasum, but regarding the rest of the priestly and levitical gifts—terumot, ma'aserot, redemption of the firstborn son, and priestly dedications—one does not fulfill the obligation of giving when giving them to female priests and female Levites, even though ma'aser, redemption of the firstborn son, and dedications are permitted to non-priests. This is because these gifts are mentioned in the portion of Korach, and it is written there regarding ma'aser, "to the sons of Levi," and certainly this comes to exclude the daughters of Levi. Similarly, regarding all the priestly gifts, it is written there, "And Hashem spoke to Aharon: And I, behold, I have given to you," etc., and since it is written "Aharon," it means specifically males and not females. However, these gifts are written in the portion of Shoftim, and it is written simply "priests," and we derive "even a female priest." Therefore, even though in this portion terumah is also written, as it is written, "the first of your grain," etc., nevertheless we require specifically a male priest as it is written in the portion of Korach. Therefore, we do not find in the entire Shas that giving to a female priest is effective regarding the rest of the priestly gifts, and similarly for a female Levite regarding ma'aserot. [And in Yevamot 99b, where it considers a woman to whom they do not distribute at the threshing floors because of seclusion or because she is a divorcee—which implies that otherwise they would distribute to her—this refers to the wife of a priest, as Rashi explained, and they give to her husband. Know that this is so, for a slave is also taught there, and just as a slave is for the sake of his master, so too the woman. And the words of the Tosafot in Kiddushin 6 require further study, as the Rosh wrote at the end of Bechorot, and the Tosafot themselves in other places did not write so. And delve into this.]

And since one fulfills the obligation of giving these matanot also to a kohenet, therefore a kohenet married to a Yisrael, the husband may receive matanot on behalf of his wife. And so our sages, of blessed memory, said [ibid.]: Rav Kahana ate on behalf of his wife, and similarly Rav Papa and Rav Yeimar and Rav Idi ate on behalf of their wives; meaning, they received the matanot on behalf of their wives who were kohanot. And all the more so they themselves are exempt from matanot. And there is reason to doubt whether we require her knowledge, that she give him permission to receive the matanot, or perhaps since the hand of a wife is like the hand of her husband, he may receive them even without her knowledge. And so it appears primary [so wrote the Peri Toar, not like the Peri Chadash, and also the words of the "there are those who say" do not appear correct to me, and delve into this].

And even if there is a complete kohen, one may give to a kohenet and her Yisrael husband; on the contrary, if this Yisrael is a Torah scholar and the kohen is an ignoramus, the Yisrael takes precedence, and if both are Torah scholars, they are both equal [Sha'ar HaMelekh]. And the Rambam wrote: But a chalalah does not eat, for chalalim are not included among kohanim. Thus far his words. And this is no novelty at all, for even a male kohen who is a chalal is like a stranger; rather, his intention is not that she was born from those disqualified from the priesthood, for in such a case the male is also disqualified from the priesthood, but rather his intention is that she had relations with one disqualified to her, for in such a case the male is not disqualified, but she becomes a chalalah through the relations with the disqualified person [Yevamot 45a: she herself becomes disqualified, so too here since she had relations etc., see there].

It is stated in the Sifrei: "And he shall give to the kohen"—to the kohen himself. There is no explanation for this. Some have explained that the intent is to the kohen and not to his messenger, but these are baffling words, for a person's messenger is like himself. Some have explained that this is in an unspecified case, for perhaps it is not pleasing to the kohen that the Yisrael should give them to his messenger, but if the kohen sent a messenger, he may give them to him [Pri Chadash]. This too is baffling, for without the knowledge of the kohen, he is not his messenger, so what is this coming to teach us? It appears to me that this is the explanation: behold, it has already been explained that when she is a kohenet, he may give them to her husband who is a Yisrael. According to this, it would seemingly follow all the more so that he could give them to the wife of a kohen. It comes to teach us that this is not so, but specifically to the kohen and not to his wife. The reason is simple: for the wife is the acquisition of her husband, and when he gives to the husband, it is as if he gave to his wife, for even if he gives to the wife, the husband acquires it; but the husband is not the acquisition of the wife, and when he gives to the wife without the knowledge of the husband, he has not fulfilled the mitzvah of giving.

One may also give the gifts to a minor kohen, for it is not written "to a man" but rather generally "to a kohen," and even a minor is a kohen. And even if we say that one does not have the ability to transfer ownership to a minor, regarding the gifts, the concept of transfer of ownership is not applicable, for the Torah granted them to them. And that which is written, "and he shall give to the kohen," this is not by way of transfer of ownership, but rather that the Torah commanded him to give to the kohen. We find in several places that they would give terumah and challah to minors, and there too "giving" is written. There is no doubt in this, unlike those who hesitate regarding this [Yevamot 99b: and they all send to them to their homes, etc., and Sukkah 42a: a minor who knows how to spread his palms, they distribute terumah to him, and Shevuot 27a: and a minor kohen eats it, see there].

This fact that a kohen is exempt from the matanot is specifically when he slaughters for the consumption of the members of his household, but a kohen butcher who sells to others is obligated to give the matanot to another kohen. And thus our sages, of blessed memory, expounded: since it is written, "And this shall be the due of the kohanim from the people, from those who slaughter the slaughtering," and it is not written "from the people who slaughter the slaughtering," we learn from this that this is the explanation: "from the people" when they slaughter for themselves and not "from the kohanim," and "from those who slaughter the slaughtering" even when they are kohanim, since they are selling to others [132b]. And if he establishes himself to sell in the slaughterhouse like a permanent butcher, he is obligated to give immediately. And if he is not permanent in selling in the slaughterhouse but rather in his house, he is exempt for two or three weeks because it has not yet become publicized that he slaughters to sell, and from this point forward he is obligated. And we compel him with all types of compulsion if he does not want to give to another kohen.

There are some of our teachers who wrote that according to the Torah one is only liable when he slaughters the animal of an Israelite, for when he slaughters his own animals he is exempt even when slaughtering to sell, but the Rabbis decreed that he is liable to give to a kohen; for if not so, Israelite butchers would accustom themselves to partner with kohanim in order to be exempt from matanot. Therefore, when he does not establish himself to sell in the slaughterhouse, they exempted him for two or three weeks; for if it were according to the Torah, what distinction is there between one who establishes himself in the slaughterhouse or not [Tosafot ibid.]. And there are some of our teachers who hold that even according to the Torah he is liable when slaughtering his own animals to sell [Rashi]. And this fact that he is exempt in the first weeks when he does not establish himself in the slaughterhouse is because in truth his mind is not absolute to sell, and he thinks that if there will be someone to whom to sell he will sell, and if not, he will eat them himself [Ran]:

It has already been explained in section 8 that the obligation is upon the butcher; when Reuven slaughters Shimon's animal, Reuven is obligated to separate the gifts and give them to a kohen, and if he slaughtered the animal of a kohen or the animal of a non-Jew, he is exempt. And even though the obligation is upon the slaughterer, nevertheless, the tovat hana'ah belongs to the owner. And what is tovat hana'ah? That it is within the power of the owner to give them to whichever kohen he desires, and this is tovat hana'ah, that the kohen shows him gratitude for this. But it is forbidden for him to receive money from the kohen in order that he give him the gifts. And likewise, it is forbidden to receive money from an Israelite who has a daughter's son who is a kohen, that he give the gifts to his daughter's son [Nimukei Yosef in the name of Rabbeinu Yerucham]. And even though regarding terumah it is permitted for an Israelite to say to an Israelite who is separating terumah, "Here is a sela for you, and give this terumah to my daughter's son, the kohen," nevertheless, regarding other gifts of the priesthood it is forbidden. And the distinction is explained in the Gemara [Berakhot 24, see there]. And the Rambam in chapter 2 of Terumot, law 2, permits in such a case even regarding other gifts, and the Tur has already disagreed with him in siman 331, see there.

And this, that the obligation is upon the shochet, this is when he slaughtered the animal of an Israelite; and then, even if the shochet is a kohen, it is forbidden for him to receive them for himself, but rather he gives them to whichever kohen the owner of the animal desires [Levush], unless the owner of the animal commands him to take them for himself. And if he slaughters the animal of a kohen or the animal of a gentile, he is exempt, since the owner of the animal is not subject to the obligation, even if he is a partner with him, as will be explained with the help of Heaven.

Two who are partners in an animal are obligated in the matanot, for "from the people" is written, even if the animal belongs to several people. However, an Israelite who is a partner in an animal with a kohen or with a gentile is exempt even from his own portion. And even though we maintain "a lamb," even a partial lamb, this is specifically regarding a half-lamb that is similar to a whole lamb, such as a deer that mates with a goat, for then he is obligated to give from all the "lamb-ness" within it—that is, half of the matanot if we are concerned for the seed of the father, as has been written. But here, where the whole of it is called a lamb, but he is exempt due to the portion of the kohen or the gentile, we say since not all the "lamb-ness" within it is obligated, even the portion of the Israelite is not obligated. [Tosafot 132a, s.v. "And it is necessary"]:

Nevertheless, the sages, of blessed memory, commanded that one must mark, meaning to make a sign on the meat, so that everyone will know that the kohen is a partner in it, so that they do not suspect him of not giving the gifts [Mishnah ibid.]. And so too when a gentile is a partner in it. However, when the gentile sits in the slaughterhouse, it is not necessary to mark, because it is the way of the gentile to speak many words, saying to him, "Do not sell for this much, but rather for that much," and the like, and everyone will see that the gentile has a partnership. But in the partnership of a kohen, when they slaughter for themselves and not for sale, even when the kohen sits with him in the slaughterhouse, it is necessary to mark, because he remains silent and not everyone knows, and they assume that the kohen wants to buy meat. And even if he sits on the chest where the butcher puts the money, they assume that the butcher seated him to guard the money and not that he is a partner in the animal. And furthermore, not everyone knows that they do not intend to sell the meat, for in such a case they are obligated in the gifts as I have written; but regarding a gentile, even in such a case he is exempt, for the obligation does not apply to him [and I wonder why the Shas on page 133b did not state this reason, and it requires great study].

In what case is this said, that the partnership of the kohen or the gentile exempts? When he is a partner in the entire animal, even if he has a small portion, since they do not have a specific limb for the partnership. But if they are partners only in the head and the entire body belongs to the Israelite alone, he is not exempt except from the cheeks alone. And if they are partners only in the foreleg, he is not exempt except from the zeroa. And if they are partners only in the innards, he is not exempt except from the kivah.

And so, if a kohen or a goy has a beast and he sold the head to an Israelite before slaughter, the Israelite is obligated to give the cheeks to a kohen, but is exempt from the zeroa and the keivah since they belong to the seller. And if he sold him the foreleg, he is obligated in the zeroa; and if he sold him the innards, he is obligated in the keivah. And even if after the slaughter he sold him the entire body, he is exempt, because the obligation depends only on the time of slaughter. Therefore, one who slaughters the beasts of a goy at the goy's premises and stipulated with him that whichever is found to be treifah shall remain before him, and whichever is found to be kosher shall be acquired by the Israelite—even if he made a transaction with him—he is exempt from all the matanot, because at the time of slaughter it still belongs to the seller until it is found to be kosher, and the primary acquisition is after the slaughter. And even though the majority of beasts are kosher, we do not follow the majority in matters of money; and furthermore, treifot of the lung are common [Pri Chadash]. And the same applies to the reverse, in the case of a goy who buys from an Israelite and slaughters it via a shochet at the Israelite's premises on the condition that if it will be kosher it remains with the Israelite, and if it is treifah it belongs to him, that the Israelite is obligated in the matanot [ibid.], and it is simple.

A kohen who sold a cow to a Yisrael and said to him, "I am selling you this cow except for its matanot," it is a reservation, and he must give them to the seller, for he never sold him the matanot. But if he said to him, "on condition that the matanot are mine," it is not a valid condition, and the purchase stands, and he may give them to any kohen he desires. For since he said to him the language of "on condition," it implies explicitly that the matanot were included in the sale and the Yisrael acquired them; and since the Yisrael acquired them, he is obligated to give them to a kohen, and the Torah granted him the tovat hana'ah to give them to any kohen he desires. If so, the condition he stipulated, "on condition that the matanot are mine," was a condition against what is written in the Torah, and his condition is void while the act stands, as written in Even HaEzer siman 38. This law is explained in the Gemara [154] and the poskim and the Rambam ruled accordingly. And they raised a difficulty against him, for in the seventh chapter of Ma'aser he ruled regarding a kohen who sold a field to a Yisrael and said to him, "on condition that the ma'aser is mine," his condition stands, for it is as if he reserved for himself the place of the ma'aser, see there. And this too is explained in the Gemara [82, 63a]. However, this is no comparison at all, for regarding ma'aser it is explained in the Gemara that the reason we say so is that it shall be as if he reserved the place of the ma'aser, for if not so, the entire sale is void, as a person cannot transfer ownership of a thing that has not yet come into the world, and the ma'aser is not yet in the world; therefore we say that such was the intention in order to uphold the sale. This is not the case regarding a cow, where the matanot are in the world and the sale stands, we say the intention is according to its plain meaning [Pri Chadash]. And if he used the language of "except," such as "my cow is sold to you except that the matanot are mine," there is a dispute in the Gemara regarding a get whether this language is like "except" or like "on condition" [58], and it was decided in the Gemara in Gittin [82a] that the halakha is that it is like "except," see there.

And an Israelite who sold a cow to his fellow and reserved the gifts, even though it is a valid reservation if he spoke with the language of "except" as has been written, nevertheless the obligation is upon the buyer, who is the butcher, to give them to the kohen whom the seller shall choose for himself. For it has already been explained that the obligation is upon the shochet; therefore, if the buyer does not slaughter by himself, there is no such obligation upon him, but rather upon the shochet, who shall ask the seller to which kohen to give them.

An Israelite who said to his fellow after the slaughter of his animal, "Sell me the innards of this cow," and the abomasum, which is one of the matanot, was among them, and the buyer took all the innards with the abomasum, he is obligated to give the abomasum to whichever kohen the seller desires. He does not deduct from the price paid to the seller, for he knew that the portion of the kohen was among them and he did not take them by weight. Therefore, if he indeed took them by weight, at such-and-such per litra, he shall deduct from the price according to the weight of the abomasum. However, upon whom is the obligation to give them to a kohen? If the buyer weighed them for himself, the obligation is upon him, for the stolen object is found with him and he is obligated in its return, and the kohen cannot claim them from the seller but only from the buyer. But if the seller weighed them and gave them to him, the kohen may claim from whichever one he desires: if he wishes, he collects from the seller, for by his hand he weighed them and gave them to the buyer; if he wishes, he collects from the buyer, because the stolen object is found in his hand. [And the intention is not a literal claim through a beit din, for this is money that has no claimants as has been explained, but rather the intention is regarding fulfilling one's duty before Heaven; and see what I wrote in section 50].

It is a simple matter that it is forbidden for any Israelite to eat the gifts without the knowledge of the kohen, and this is absolute theft. However, if they were eaten or sold, whether by the owner of the animal or by another, he cannot extract payment from him in beit din because it is money that has no claimants, and he is only liable in the laws of Heaven due to the theft from the tribe. And one who buys them, even though he has not acted properly, nevertheless it is permitted to eat them, for there is no sanctity in them, and also the mitzvah of giving is not upon him but rather upon the one who sold them to him and received the money. Nevertheless, he is like one who assists the hands of transgressors, but there is no violation of "before a blind person" here, for he could have sold them to a gentile. And regarding this our sages, of blessed memory, said [Chullin 130b]: Priesthood gifts are stealable, meaning that it is possible to steal them and the kohen cannot claim them in the laws of man. And this is the approach of the Rambam in chapter 9 of Bikkurim and the Shulchan Aruch section 31.

And some raise a difficulty, for according to this, why did we rule in section 48 that when the butcher sold them and weighed them, the kohen may claim from whomever he wishes since priestly gifts are stolen [Peri Chadash, subsection 47]? And they were hard-pressed in this. But it seems to me that there is no difficulty at all, for certainly where they acted with the intent of theft, one is not required to pay in the laws of man. However, there we are dealing with a case where both the seller and the buyer have no desire to steal at all and wish to give them to a kohen, and they only disagree as to who must bear the loss. For this reason, we distinguished that when he sold them not by weight, then the buyer must bear the damage, and when he sold them by weight, the seller must bear it. And this is why the kohen may claim from this one or that one, since their intention is not for theft. But if their intention is truly for theft, the kohen cannot claim in the laws of man. And we find a distinction like this in the Gemara [Bava Kamma 97a: This case where he acted etc. and this etc. with the intent of theft].

But the approach of Rashi and Tosafot there is that as long as the gifts are in existence, it is absolute theft and one is obligated to give them to the kohen. And they explain a different explanation for that which the Gemara said, "priestly gifts are stolen," which is that the name of theft applies to this. Therefore, when the butcher weighed them and gave them to the buyer, the kohen can claim them even from the seller, even though the gifts are in the hand of the buyer. According to this, in their opinion, even if their intention was for theft, it is not effective [see Peri Chadash subsection 46 and delve into this]:

Our teacher, the Beit Yosef, wrote in section 16: An Israelite who sent meat and the matanot were in it to his fellow, it is permitted to eat them. Thus far his words. That is to say, he does not fear that perhaps the sender stole them [Tur]. And the commentators of the Shulchan Aruch explained that the intention is that even ab initio it is permitted to receive them, and it is not considered as one who assists the hands of transgressors, because we say that he certainly took them from a kohen. However, according to the essential law, even if he stole them, it is permitted to eat them, for matanot kehunah may be stolen, as has been written [Bach, and Shach subsection 7, and Pri Chadash]. And it appears to me that according to the system of Rashi and Tosafot, by strict law it would have been forbidden for the one to whom they were sent to eat them, for as long as they are intact, this is absolute theft, as has been written; and it is only because we say that presumably he took them from a kohen, but otherwise it would be forbidden by law.

Our teacher, the Beit Yosef, wrote in section 21: Matanot apply in every place, whether in the Land or outside the Land, whether in the presence of the Temple or not in the presence of the Temple; and there is one who says they do not apply outside the Land, and so they have practiced. Thus far his words. And this is the opinion of Rashi and Tosafot, because it is stated in the Gemara [136a]: Rabbi Ilai forbids; matanot apply only in the Land, and likewise reshit hagaz, because we derive "giving" "giving" from terumah: just as terumah applies only in the Land, so too these. And it is stated there in the Gemara: Nowadays the world practices according to Rabbi Ilai regarding reshit hagaz. And Rashi and Tosafot wrote that the same applies to matanot. And even though in the days of the Amoraim we find that they gave matanot in Babylonia, Rashi, of blessed memory, wrote [Shabbat 10b], and this is his wording: And even though Rav Chisda was outside the Land, we do not derive from here that matanot apply in this time, for nowadays the world practices etc. and now we do not see that they practice even regarding matanot etc. and we do not change the custom. Thus far his words. And so all the world practices. Nevertheless, one who wishes to give is able to give and it does not appear as arrogance. And there are some of the pious and men of deed who strive to fulfill this mitzvah even outside the Land [Keneset HaGedolah], and I too saw in the days of my youth a certain great man who before the festival would buy a small animal and slaughter it and give the matanot to a kohen; and I am a Levi and it is not within my power to fulfill it, and happy is the man who does this.