Talmud - Bekhorot 57a בכורות נ״ז א׳

And Rabbi Yoḥanan follows his established line of reasoning in this regard. As Rav Asi says that Rabbi Yoḥanan says: Brothers who divided real estate received as an inheritance are considered purchasers who have purchased from each other, and as purchasers of land they must return the portions to each other in the Jubilee Year, at which point they may redistribute the property. This demonstrates that Rabbi Yoḥanan does not hold that it is retroactively established that each brother’s portion was designated for him upon their father’s death. Rather, it is considered as though all the land was joint property until the brothers traded or bought their respective portions from each other.

The Gemara notes: And both statements of Rabbi Yoḥanan are necessary. As, if he had taught this halakha to us only here, with regard to animal tithe, one might have thought that it is in this case that Rabbi Yoḥanan says each one has not received his own portion. This is because the case must be similar to the case of your firstborn son, in accordance with the juxtaposition between the two cases. Just as your firstborn son is redeemed only if it is clear to you that he is your son, not if he is purchased from another, so too, your cattle and your sheep are subject to animal tithe only if it is clear to you, i.e., if there is no aspect of acquisition at all. But in the case of a field, one might think it is only with regard to a field that is sold that the Merciful One states that the purchaser should return it in the Jubilee Year, whereas a field that is an inheritance or a gift need not be returned.

And if Rabbi Yoḥanan had taught us only the halakha that a field inherited by two brothers must be returned in the Jubilee Year, one might have thought that Rabbi Yoḥanan was uncertain and therefore ruled to be stringent. If so, he would rule stringently with regard to animal tithe as well, deeming the brothers liable. Alternatively, one might think Rabbi Yoḥanan rules in this manner with regard to returning fields in the Jubilee Year only because the field must return to how it was in the beginning. But here, in the case of animal tithe, where there is no requirement to return matters to their initial state, one might say that the brothers are not considered to be purchasers, but rather each received the animals that were retroactively designated for him and they are therefore obligated in animal tithe. For this reason it is necessary for Rabbi Yoḥanan to teach both cases.

The Gemara raises an objection from a baraita against the opinion that there is retroactive designation of the animals: And similarly in the case of two partners who divided their common property, and one took ten lambs and the other one took nine lambs and a dog, sacrificing any of the ten lambs taken in exchange for the dog is prohibited. This is because they are considered “the price of a dog,” as it states in the Torah (Deuteronomy 23:19), since they were given in exchange for it. Nevertheless, the nine lambs that were taken with the dog are permitted for sacrifice. The Gemara explains the objection: And if you say that there is retroactive designation, why are all ten lambs prohibited? Let him select one of the lambs to correspond to the dog and take it away, and all the rest of these lambs should be permitted.

Rav Ashi said: If this is referring to a case where they are all equal in value to each other, indeed one may consider only one of the lambs as corresponding to the dog. Here, we are dealing with a case where they are not all equal in value to each other, but the value of this dog is one and a small amount more than the value of each one of the ten lambs. Therefore, one cannot set aside a single lamb in exchange for the dog, and consequently one draws this extra small amount, i.e., the additional value of the dog, and divides it between all of the other nine lambs. As a result, all ten lambs are prohibited, since part of the price of a dog is included in each of them.

MISHNA: All cattle, sheep, and goats enter the pen to be tithed, except for an animal crossbred from diverse kinds, e.g., a hybrid of a goat and a sheep; a tereifa; an animal born by caesarean section; one whose time has not yet arrived, i.e., that is younger than eight days old, which is when animals become eligible for sacrifice; and an orphan. And what is an orphan? It is any animal whose mother died or was slaughtered while giving birth to it and thereafter completed giving birth to it. Rabbi Yehoshua says: Even if its mother was slaughtered but its hide exists at birth, i.e., if the mother’s hide is present after the birth, this is not an orphan.

GEMARA: The Gemara asks: From where are these matters, i.e., the fact that those animals are not included in the animal tithe, derived? The Gemara answers: As the Sages taught in a baraita that discusses offerings in general: “When a bull or a sheep or a goat is born, then it shall be seven days under its mother, but from the eighth day onward it may be accepted for an offering made by fire to the Lord” (Leviticus 22:27). The phrase “a bull or a sheep” serves to exclude an animal born from diverse kinds; “or a goat” serves to exclude an animal that resembles another, e.g., a sheep that is the offspring of two sheep but which looks like a goat, or vice versa; “when…is born” serves to exclude an animal born by caesarean section; “then it shall be seven days” serves to exclude an animal whose time has not yet arrived; “under its mother” serves to exclude an orphan.

The baraita continues: From where is it derived that these halakhot also apply to animal tithe? Rabbi Yishmael, son of Rabbi Yoḥanan ben Beroka, says it is learned by a verbal analogy from the term “under.” It is stated here, with regard to animal tithe: “Whatever passes under the rod” (Leviticus 27:32), and it is stated there, with regard to all offerings: “Under its mother” (Leviticus 22:27). Just as there, in the case of all offerings, the verse serves to exclude all these categories, so too here, with regard to animal tithe, the verse serves to exclude all these categories. And just as here, with regard to animal tithe, the verse serves to exclude a tereifa, as the verse states: “Whatever passes under the rod,” and a tereifa is unable to pass unaided, so too there, with regard to all offerings, the verse serves to exclude a tereifa.

§ The Gemara asks: What does the mishna’s expansive term: All, serve to include? The Gemara answers that it serves to include this halakha that the Sages taught in a baraita: With regard to an animal that copulated with a person, or an animal that was the object of bestiality, or an animal that was set aside for idol worship, or one that was worshipped as a deity, or one that was given as payment to a prostitute or as the price of a dog, or a tumtum, i.e., an animal whose sexual organs are indeterminate, or a hermaphrodite, i.e., an animal displaying sexual organs of both sexes, all of these enter the pen to be tithed despite the fact that they are disqualified from being brought as offerings. Rabbi Shimon ben Yehuda says in the name of Rabbi Shimon: A tumtum and a hermaphrodite do not enter the pen to be tithed.

The Gemara raises a difficulty: But as for the tanna of our mishna, if he derives the verbal analogy of: “Under” (Leviticus 27:32), and: “Under” (Leviticus 22:27), from the verse referring to sacrificial animals, then these types listed in the baraita should also not enter the pen to be tithed, as they are all disqualified from being sacrificed. And if he does not derive the verbal analogy from sacrificial animals, from where does he derive the exemption of these categories listed in the mishna, e.g., one whose time has not yet arrived and an orphan?

The Gemara answers: Actually, the tanna does derive the verbal analogy, but these categories listed in the baraita are included by the Merciful One in the animal tithe. As it is written with regard to those animals that may not be brought as offerings: “Neither from the hand of a foreigner shall you offer the bread of your God of any of these, because their corruption is in them, there is a blemish in them” (Leviticus 22:25). This verse indicates that corruption is considered a blemish, and the school of Rabbi Yishmael taught: Anywhere that the term: Corruption, is stated, it is a reference to nothing other than a matter of licentiousness and idol worship.

The baraita supports this claim: Corruption is a reference to a matter of licentiousness, as it is written with regard to the generation of the flood: “And God saw the earth, and behold, it was corrupt; for all flesh had corrupted their way upon the earth” (Genesis 6:12). And corruption is also a reference to idol worship, as it is written: “Lest you deal corruptly, and make you a graven image, the form of any figure, the likeness of male or female” (Deuteronomy 4:16).

And the juxtaposition of the word “corruption” with the word “blemish” in Leviticus 22:25 teaches that in any case where a blemish disqualifies an animal, a matter of licentiousness or a matter of idol worship also disqualifies it. And in a case where a blemish does not disqualify an animal, a matter of licentiousness or a matter of idol worship also does not disqualify it. And with regard to this animal tithe, since a blemish on an animal does not disqualify it, as it is written: “He shall not inquire whether it be good or bad, neither shall he change it” (Leviticus 27:33), a matter of licentiousness or a matter of idol worship also does not disqualify it.

The Gemara further explains that the categories listed in the baraita are either matters of licentiousness or matters of idol worship. An animal that copulated with a person and an animal that was the object of bestiality are both a matter of licentiousness. An animal that was set aside for idol worship and one that was worshipped are cases of idol worship. And an animal that was given as payment to a prostitute is a matter of licentiousness, and an animal used as the price of a dog is juxtaposed to an animal that was given as payment to a prostitute (see Deuteronomy 23:19).

Finally, with regard to an animal that is a tumtum or a hermaphrodite, the tanna holds that it is uncertain whether it is male or female, not a creature unto itself, and therefore a tumtum is also subject to the tithe.

The baraita states that Rabbi Shimon ben Yehuda says in the name of Rabbi Shimon: A tumtum and a hermaphrodite do not enter the pen to be tithed. The Gemara explains: He holds that the case of an animal that is a tumtum or a hermaphrodite involves an uncertainty, and the Merciful One excluded cases of uncertainty with regard to sacrificial animals. Only a definite male or a definite female is fit to be sacrificed on the altar, but not a tumtum or a hermaphrodite. Consequently, with regard to animal tithe too, they do not enter the pen to be tithed, as he derives the verbal analogy of “under” and “under” from sacrificial animals.

The Sages taught in a baraita: All animals enter the pen to be tithed except for an animal crossbred from diverse kinds, e.g., a hybrid of a goat and a sheep, and a tereifa; this is the statement of Rabbi Elazar, son of Rabbi Yehuda, of the village of Bartota, who said it in the name of Rabbi Yehoshua. Rabbi Akiva said: I heard from Rabbi Yehoshua that an animal born by caesarean section and an animal whose time has not yet arrived, i.e., that is less than eight days old, and an orphan animal, are also excluded from animal tithe.

The Gemara asks: And the first tanna of the baraita, what does he maintain? If he derives the verbal analogy of “under” and “under” from sacrificial animals, then these categories listed by Rabbi Akiva should also not enter the pen to be tithed. And if he does not derive the verbal analogy, granted, he rules that a tereifa does not enter the pen to be tithed, as it is written: “Whatever passes under the rod” (Leviticus 27:32), which excludes a tereifa, as it does not pass under the rod due to its physical state. But from where does he derive that an animal crossbred from diverse kinds does not enter the pen to be tithed?

The Gemara answers: Actually, he does derive the verbal analogy of “under” and “under,” and therefore he excludes a tereifa and diverse kinds from the animal tithe. But with regard to an animal born by caesarean section

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

Bechorot 57a examines Rabbi Yoḥanan's ruling that brothers dividing an inherited estate are treated as buyers, affecting animal tithe and Jubilee land returns.