QUESTION: The Mishnah (19b) discusses whether the law of Bechor applies when
one buys an animal from a Nochri and the animal gives birth, and it is not
known whether this is the animal's first birth. The Gemara asks what is the
Halachah in a case in which one buys an animal from another Jew, and it is
not known whether the animal has given birth before or not.
Rav says that when one buys an animal from another Jew, the first baby that
is born afterwards is considered to be a definite Bechor. Had the animal
given birth before, the seller certainly would have informed the buyer in
order to praise the merchandise that he was selling.
RASHI (DH Ishtabuch) explains that the seller would have informed the buyer
in order to assure him that he will not lose the first animal that is born
by having to give it to a Kohen.
TOSFOS (DH Ishtabuch) has a different text in the words of Rashi. According
to his text, the seller certainly would have informed the buyer that the
animal had already given birth in order to assure the buyer that the animal
was healthy, because an animal that has safely undergone a birth will not be
in mortal danger at subsequent births. According to this explanation,
though, why should the same reasoning not apply to an animal bought from a
Nochri? If the Nochri's animal has given birth before, then certainly the
Nochri will praise the animal in order to promote the sale (and perhaps to
take a higher price), and he will tell the Jew that it has given birth in
the past. The fact that he does not tell the Jew that the animal has given
birth should indicate that it has never given birth!
Tosfos explains that the reason why we do not apply the same logic when one
buys an animal from a Nochri is because even the Nochri tells the Jew that
the animal gave birth, we do not rely on his word. Tosfos write that we
learn from Rashi's explanation that a Nochri is not believed, even when he
is "Mesi'ach l'Fi Tumo" and is unaware that we are relying on his word with
regard to a Torah law (see Insights to Chulin 66:6 and 97:4).
Tosfos implies that the reason we assume that he is lying is because he
wants to praise his merchandise. However, the Gemara in Bava Kama (114b)
states that a Nochri is not believed with regard to an Isur d'Oraisa, even
when he is "Mesi'ach l'Fi Tumo" (with the exception of testifying l'Fi Tumo
about the identity of a woman's husband who died in order to permit the
widow to remarry)! Why, then, does Tosfos need to say that the reason the
Nochri is not believed is because he was merely promoting his merchandise,
implying that a Nochri *is* believed when he is not promoting his
merchandise? (See SHACH YD 316:2, in the name of the TERUMAS HA'DESHEN #13a,
and MAHARIT ALGAZI, p. 14, #29, DH v'Hineh mi'Divrei, in the name of the
ANSWER: The MAHARIT ALGAZI answers that Tosfos maintains that when one buys
an animal from a Nochri and does not know whether it has given birth in the
past, the obligation to give the next animal that is born to a Kohen as the
Bechor is *not* a Chiyuv d'Oraisa.
This is evident from the Gemara earlier (19b). In the Mishnah there, Rebbi
Yishmael says that when one buys a goat from a Nochri and does not know
whether the goat has ever given birth before, if the goat is not older than
one year old, we may assume that it has never given birth before, and the
next birth may be assumed to be its first one, and the firstborn male is
considered the Bechor and must be given to a Kohen. If the goat is older
than one year, then it is a doubt whether this birth is its first or not,
and the newborn kid is left to graze until it gets a Mum, and the owner may
then eat it. The Gemara asks why Rebbi Yishmael considers the kid born to a
goat older than one year to be a Safek Bechor. There is a Rov that tells us
that a majority of goats became pregnant in their first year, and thus we
should follow the Rov and assume that this kid is *not* the Bechor. The
Gemara suggests that Rebbi Yishmael follows the view of Rebbi Meir who rules
that we are concerned for a minority (Mi'ut). Since a minority of goats do
not became pregnant in their first year, we must be concerned that this goat
is of the minority, and its kid indeed might be a Bechor.
Tosfos (20a, DH v'Iba'is) states that Rebbi Meir's concern for the minority
is only a stringency, a Chumra d'Rabanan. Therefore, since the baby born to
an animal over one year old is only a Bechor mid'Rabanan, a Nochri would be
believed to say that the animal had already given birth, if not for the
suspicion that he is lying in order to praise his merchandise.
The Maharit Algazi adds that this explanation is true even according to
Ravina, who says that Rebbi Yishmael in the Mishnah can be following the
view of the Chachamim who are not concerned for a minority. Ravina explains
that the Chachamim follow the majority only when it does not depend on an
action (see Insights to Bechoros 20:1). The Chachamim do *not* follow the
majority when it depends on an action occurring -- a "Rov ha'Taluy
b'Ma'aseh" (in the case of the Mishnah, the majority depends on the goats
breeding, and the Rov does not tell us that an action has taken place). When
the Chachamim follow a minority, however, they only follow the minority
mid'Rabanan. Therefore, we would rely on the words of a Nochri who is "Mesi'
ach l'Fi Tumo" if not for the suspicion that he is lying to promote his
(However, see TESHUVOS REBBI AKIVA EIGER 1:162, DH b'Hineh, who states that
the RAMBAM maintains that a Rov that depends on an action is not considered
a Rov even mid'Oraisa. The RASHBA argues and maintains that mid'Rabanan it
is not considered a Rov. The Rashba's view supports the approach of the
Maharit Algazi. See also CHAZON ISH YD 190:10.) (D. Bloom)
QUESTION: In the Mishnah, Rebbi Eliezer ben Yakov says that a large clump of
blood that was discharged from the womb of an animal must be buried,
because, as RASHI explains, it might have been composed of the fetus of a
firstborn male which became Kadosh upon exiting the womb.
However, we find that the Mishnah in Chulin (77a) says that when a cow
miscarries with the fetus of its firstborn, the fetus may be fed to the dogs
(i.e. discarded). Why, then, does the Mishnah here state that when a cow
discharges a large clump of blood at its first pregnancy, the clump must be
ANSWER: TOSFOS (DH Behemah) explains that the reason why the clump of blood
must be buried is *not* because it has Kedushah. Rather, it must be buried
in order to publicize that any further offspring from this cow is exempt
from the law of Bechor.
Why, though, is a miscarried *fetus* of a cow not buried for the same
The RAMBAN here (in Hilchos Bechoros l'ha'Ramban) and TOSFOS in Nidah (27b,
DH Kedei) answer that if the cow gave birth to a stillborn fetus, it is
apparent to all that this was its firstborn and that any further offspring
is exempt from Bechorah. However, not everyone is aware that giving birth to
a clump of blood can exempt subsequent animals from Bechorah, and therefore
it must be publicized.