Talmud - Bekhorot 2b בכורות ב׳ ב׳

What, is it not referring to the fetus when the baraita states that he is not permitted to sell it? The Gemara responds: No, it is referring to the animal itself that he may not sell to the gentile, and that is why he is penalized.

The Gemara asks: But doesn’t the baraita teach: The Sages penalize him up to ten times its value [damav], in masculine form, indicating that it is referring to the fetus and not the mother? The Gemara responds: Teach the following wording in the baraita: The Sages penalize him up to ten times its value [dameha], in feminine form. The Gemara asks: But doesn’t it teach: He gives all of its value to the priest? And if it is referring to the animal and not the firstborn, what is the relevance of the priest? The Gemara answers: Here we are dealing with a case where the Jew gave the gentile a pregnant animal to fatten it in order to divide the profits as well as the offspring. Since we penalize him for selling the animal in a prohibited manner, we penalize him with regard to the fetus as well.

Rav Ashi says: Come and hear a resolution from a baraita: Rabbi Yehuda deems the sale to a gentile of a damaged animal permitted, because it is incapable of being cured. This statement indicates that if it is capable of being cured, Rabbi Yehuda deems its sale prohibited. And a fetus is also similar to one who is able to be cured, as it ultimately will be capable of working. Learn from it that Rabbi Yehuda deems the sale of a fetus to a gentile prohibited.

And there are those who teach this discussion as referring to the statement in the mishna: With regard to one who sells the fetus of his donkey to a gentile, although he is not permitted to sell a large animal to a gentile, it is exempt from the obligations of firstborn status. The discussion then proceeded as follows: Let us say that the mishna is not in accordance with the opinion of Rabbi Yehuda, as we learned in a mishna (Avoda Zara 14b): Rabbi Yehuda deems the sale of a damaged animal permitted because it is incapable of performing labor. The halakha is presumably the same with regard to a fetus, which is also not capable of performing labor.

The Gemara responds: You may even say that it is in accordance with the opinion of Rabbi Yehuda, as it is permitted to sell a damaged animal because that is not its natural state; it is defective and is therefore not included in the prohibition against selling large livestock. But with regard to a fetus, since it is in its natural state, and will become capable of working after growing up, perhaps it is not considered damaged, as it is not defective.

The Gemara suggests: Come and hear another proof from a baraita: Rabbi Yehuda says that in the case of one who receives an animal from a gentile to care for and receives a portion of the offspring in exchange for his work, and it gave birth to a firstborn, they assess its value, and the Jew gives half of its value to the priest to redeem his portion, which is sanctified by the firstborn status. And in the case of one who gives the gentile an animal in receivership even though he is not permitted to do so, the Sages penalize him by requiring that he purchase the gentile’s portion of the animal for up to ten times its value, and he gives all of its value to the priest. What, is it not referring to the fetus when the baraita states that he is not permitted to sell it? The Gemara responds: No, it is referring to the animal itself that he may not sell to the gentile, and that is why he is penalized.

The Gemara asks: But doesn’t the baraita teach: The Sages penalize him up to ten times its value [damav], in masculine form, indicating that it is referring to the fetus and not the mother? The Gemara responds: Teach the following wording in the baraita: The Sages penalize him up to ten times its value [dameha], in feminine form. The Gemara asks: But doesn’t it teach: He gives all of its value to the priest? And if it is referring to the animal and not the firstborn, what is the relevance of the priest? The Gemara answers: Here we are dealing with a case where the Jew gave the gentile a pregnant animal to fatten it in order to divide the profits as well as the offspring. Since we penalize him for selling the animal in a prohibited manner, we penalize him with regard to the fetus as well.

Rav Ashi says: Come and hear a resolution from a baraita: Rabbi Yehuda deems the sale to a gentile of a damaged animal permitted, because it is incapable of being cured. This statement indicates that if it is capable of being cured, Rabbi Yehuda deems its sale prohibited. And this fetus is also similar to one who is able to be cured, as it ultimately will be capable of working. Learn from it that Rabbi Yehuda deems the sale of a fetus to a gentile prohibited.

§ A dilemma was raised before the Sages concerning the prohibition against selling large livestock to a gentile: In the case of a Jew who sold an animal to a gentile only with regard to rights to its fetuses, but retained ownership of the animal itself, what is the halakha concerning the permissibility of the sale? The Gemara clarifies: Let the dilemma be raised according to the opinion of Rabbi Yehuda, who permits the sale of a damaged animal, and let the dilemma be raised according to the opinion of the Rabbis, who dispute that ruling.

The Gemara elaborates: Let the dilemma be raised according to the opinion of Rabbi Yehuda, as follows: Perhaps Rabbi Yehuda permits only the sale of a damaged animal, as people will not come to confuse this animal with a healthy animal, which is prohibited for sale to a gentile, as they are visibly different. But in the case of one who sells an unblemished animal with regard to the rights to its fetuses, which people may come to confuse with the case of selling the animal entirely and consider that sale permitted as well, Rabbi Yehuda deems the sale prohibited.

Or perhaps Rabbi Yehuda would claim that in the case of a damaged animal, which is separated from him in its entirety in the sale, the sale is permitted, and all the more so with regard to the sale of an unblemished animal with regard to the rights to its fetuses, where the animal is not entirely separated from him, as he did not sell the actual animal, the sale is permitted.

Likewise, the dilemma can be raised according to the opinion of the Rabbis: Perhaps the Rabbis deemed the sale prohibited only in a case of a damaged animal, as the animal is separated from him. But in the case of an unblemished animal that is sold only with regard to the fetuses, where it is not separated from him, and there is no concern that people will mistakenly sell the entire animal to a gentile, they deem the sale permitted.

Or perhaps the Rabbis would claim that in the case of a damaged animal, which people will not come to confuse with the case of an unblemished animal, the Rabbis deem the sale prohibited, and all the more so they would prohibit selling an unblemished animal with regard to the rights to its fetuses, which people may come to confuse with the case of selling an unblemished animal in its entirety.

The Gemara asks: And is the reason of the opinion of the Rabbis due to that concern that people may confuse the sale of a damaged animal with the sale of an unblemished animal in its entirety? But isn’t it taught in a baraita that the Rabbis said to Rabbi Yehuda: But why do you hold that is it permitted to sell a damaged animal? Don’t they breed it with another animal, and it gives birth to offspring, which will then be owned by a gentile? Apparently, the reason the Rabbis prohibit the sale is due to the animal’s fetuses. If so, they should prohibit selling large livestock to a gentile with regard to the fetuses as well.

The Gemara answers: This is not truly the Rabbis’ opinion. Rather, this is what they were saying to Rabbi Yehuda: Our reason for prohibiting the sale of a damaged animal is because people might come to confuse this case with the sale of an unblemished animal. But you, what is the reason that you permit selling a damaged animal? It is because the animal is incapable of being cured, and you therefore consider it similar to one who sold an animal explicitly for slaughter, which is permitted.

But actually it is not similar to that case, as don’t they breed a damaged animal with another animal, and it gives birth? And since they breed it and it gives birth, the gentile will delay its slaughter. Others may then mistakenly believe that selling large livestock for purposes other than slaughter is permitted.

And Rabbi Yehuda said to the Rabbis in response: When a damaged animal actually gives birth, I will concern myself with this possibility. Practically, this concern may be disregarded, as such an animal cannot breed with a male. In any event, no proof may be brought from this baraita concerning the opinion of the Rabbis concerning selling an animal with regard to the rights to its fetuses.

The Gemara suggests: Come and hear a proof from the mishna, where it states: And in the case of one who gives his donkey to a gentile in receivership, meaning that he divides the offspring with him in exchange for caring for the animal, the donkey is exempt from the obligations of firstborn status. This case is identical to that of selling an animal with regard to the rights to its fetuses, and the mishna does not teach: Although he is not permitted to do so. Apparently such a sale is permitted.

The Gemara responds: But according to your reasoning, with regard to that which the mishna states: One who enters into a partnership with a gentile, where it also does not teach: Although he is not permitted to do so, so too, should it be derived that it is permitted to enter into such a partnership? But doesn’t Shmuel’s father say: It is prohibited for a person to enter into a partnership with a gentile lest their joint ventures lead them to quarrel and his gentile partner will be obligated to take an oath to him and he will take an oath in the name of his object of idol worship; and the Torah states: “Neither let it be heard out of your mouth” (Exodus 23:13), which includes causing a gentile to take an oath in the name of an idol.

Rather, the tanna taught that a sale to a gentile is not permitted, and the same is true for the case of a partnership. So too, the tanna taught that a sale to a gentile is prohibited, and the same is true for a case of receivership. The Gemara asks: And what is different about the case of selling that the tanna cited the prohibition specifically in that case? The Gemara answers that the primary prohibition is that of selling the animal to a gentile.

The Gemara suggests: Come and hear a resolution to the dilemma of whether selling an animal to a gentile with regard to the rights to its fetuses is permitted from a baraita: Rabbi Yehuda says that in the case of one who receives an animal from a gentile to care for and receives a portion of the offspring in exchange for his work, and it gave birth to a firstborn, they assess its value, and the Jew gives half of its value to the priest to redeem his portion, which is considered to have the sanctity of a firstborn. And in the case of one who gives the gentile an animal in receivership even though he is not permitted to do so, the Sages penalize him by requiring that he purchase the gentile’s portion of the animal for up to ten times its value, and he gives all of its value to the priest.

And the Rabbis say: As long as the ownership of the gentile is involved, in that he possesses at least partial ownership of the mother or the fetus, the animal is exempt from its offspring being counted a firstborn.

Traduction : The William Davidson digital edition of the Koren Noé Talmud, with commentary by Rabbi Adin Even-Israel Steinsaltz.

Bechorot 2b examines penalties for selling animals or their unborn fetuses to gentiles, debating Rabbi Yehuda's stance on damaged versus curable animals.