בכורות 13 — Soncino English Talmud

¹R. Shesheth said: [The above Baraitha means] to inform us that he does not transgress on account of the first-birth. Rami the son of Hama raised an objection from the following: The duty of redemption is for the entire period of thirty days. After that, either he redeems it, or breaks its neck. What [does it mean]? Does it not mean that it is a religious duty to retain it for the whole period of thirty days? No, it means that it is a religious duty to redeem it all the thirty days. If this is the case, what it should say is: After that, either he redeems it or he transgresses [the command to redeem]! Rather, said Raba: There is no contradiction: the one statement [that redemption is after thirty days] gives the opinion of R. Eliezer who compares [an unclean animal with the first-born of a man], and the other statement [that redemption takes place immediately] gives the opinion of the Rabbis who do not make this comparison. MISHNAH. IF HE DOES NOT WISH TO REDEEM IT [THE FIRST-BIRTH OF AN ASS], HE BREAKS ITS NECK FROM BEHIND AND BURIES IT. THE MIZWAH OF REDEMPTION IS PRIOR TO THE MIZWAH OF BREAKING ITS NECK, FOR IT SAYS: AND IF THOU WILT NOT REDEEM IT, THEN THOU SHALT BREAK ITS NECK. THE MIZWAH OF YI'UD IS PRIOR TO THE MIZWAH OF REDEMPTION, FOR IT SAYS: WHO HATH BETROTHED HER TO HIMSELF. THE MIZWAH OF YIBBUM IS PRIOR TO THE MIZWAH OF HALIZAH. THIS WAS THE CASE AT FIRST WHEN THE PARTIES CONCERNED USED TO CARRY OUT THE LAW WITH RELIGIOUS INTENTIONS. BUT NOW THAT THEY DO NOT CARRY OUT THE LAW RELIGIOUSLY, THE [RABBIS] HAVE SAID: THE MIZWAH OF HALIZAH IS PRIOR TO THE MIZWAH OF YIBBUM. THE MIZWAH OF REDEMPTION [OF AN UNCLEAN ANIMAL WHOSE VALUE IS DEDICATED TO THE SANCTUARY] RESTS WITH THE OWNER. HE IS FIRST, BEFORE ANY OTHER MAN, FOR IT SAYS: OR IF IT BE NOT REDEEMED, THEN IT SHALL BE SOLD ACCORDING TO THY VALUATION. MISHNAH. [AN ISRAELITE] WHO BUYS AN EMBRYO OF A COW BELONGING TO A HEATHEN, OR WHO SELLS ONE TO HIM, ALTHOUGH THIS IS NOT PERMITTED, OR WHO FORMS A PARTNERSHIP WITH HIM, OR WHO RECEIVES AN ANIMAL FROM HIM TO LOOK AFTER, OR WHO GIVES [HIS COW] TO HIM TO LOOK AFTER, IS EXEMPT FROM THE LAW OF THE FIRSTLING, FOR IT SAYS: [I HALLOWED UNTO ME ALL THE FIRST-BORN] IN ISRAEL, BUT NOT IN GENTILES. PRIESTS AND LEVITES ARE SUBJECT [TO THE LAW OF THE FIRSTLING]. THEY ARE NOT EXEMPT FROM [THE LAW OF] THE FIRSTLING OF A CLEAN ANIMAL, BUT ONLY OF A FIRST-BORN SON AND THE FIRST-BORN OF AN ASS. GEMARA. Why does [the redactor of the Mishnah] state the case of the embryo of an ass in the first [chapter], and subsequently [in the second chapter], the case of an embryo of a cow? Why not state in the first [chapter] the case of an embryo of a cow, since it is a case of an animal consecrated as such, and, subsequently. in the case of an embryo of an ass, as it is a case of an animal consecrated only for its value? — It was explained in the West [Palestine]: If you choose, I may say the reason is because he dwelt with peculiar pleasure on this case, in the manner of R. Hanina [explained above]. Or if you prefer, I can say it is because the regulations concerning an unclean animal are relatively few; [the redactor of the Mishnah] therefore cleared them out of the way first. R. Isaac b. Nahmani reported in the name of Resh Lakish on behalf of R. Oshiah: If an Israelite gave money to a heathen for his animal, [we judge the transaction] according to their laws and even though he did not pull the animal, he acquires possession and is subject to the law of the firstling. If a heathen gives money to an Israelite for his animal, [we also judge the transaction] according to their laws, and although he did not pull [the animal], he acquires possession and is exempt from the law of the firstling. The Master says: ‘If an Israelite gave money to a heathen, [we judge the transaction] according to their laws, and although he did not pull [the animal], he acquires possession and is subject to the law of the firstling’. What does ‘their laws’ mean? Shall we say that ‘according to their laws’ means, as regards the person [of the heathen], and we conclude a fortiori, that if the person [of a heathen] is acquired by the Israelite for money, as Scripture writes: To hold for possession — [Scripture] compares a Canaanitish slave with a possession: as a possession is acquired by handing over the money to the seller, by a bill of sale, and taking possession, so a Canaanitish slave is acquired with money — how much more so, therefore, is this the case with reference to a heathen's property? If this were the case, then a heathen's property should also be acquired even by means of a bill of sale and taking possession? And, moreover, this idea can be confuted by the case of an Israelite [having a transaction] with an Israelite. For though the person [of an Israelite] is acquired with money. yet his property is acquired by means of meshikah! Rather said Abaye: The expression ‘according to their laws’ means, those which the Torah laid down for them. [For Scripture says]: Or buy of thy neighbour's hand, [and we deduce from this that] from ‘the hand of thy neighbour’ the way of acquiring possession is meshikah, but from the hand of a heathen the way of acquiring possession is with money. But why not deduce that from the hand of a heathen there is no way of acquiring possession at all? — It was explained: You cannot assume this a fortiori: If [the heathen's] person can be acquired, how much more so his property! But perhaps say that in the case of a heathen, two ways of effecting possession are required? — The answer was given: Have we not here an a fortiori [argument]? If his person is acquired only in one way. shall his property be acquired in two ways? But why not say that [a heathen acquires an object] either by means of one or the other? — [The method of his acquiring] must resemble [the form of acquiring mentioned In connection with the text] ‘thy neighbour’. Just as in the case of ‘thy neighbour’, [i.e., an Israelite], possession [can be acquired] only in one way, so in the case of a heathen only in one way. The Master said: ‘But if a heathen gave money to an Israelite for his animal, [we judge the transaction according to their laws, and even though he did not pull [the animal], he acquires possession and is exempt from the law of the firstling’. What does ‘according to their laws’ mean? If the expression ‘according to their laws’ refers to the person [of the Israelite] who is acquired with money by a heathen and we infer a fortiori: If the person [of an Israelite] is acquired with money — for Scripture writes: Out of the money that he was bought for, — how much more so is [the Israelite's] property [acquired by means of money by a gentile]? This can be refuted by the case of a transaction between Israelites, for his person is acquired with money and yet his property is acquired by meshikah! Rather, said Abaye: ‘According to their laws’ means those which the Torah laid down for them. [Scripture says]: ‘And if thou sell aught to thy neighbour’; [we infer from this] that ‘to thy neighbour’ the way of acquiring possession is by meshikah, but in the case of a gentile, possession is acquired with money. But why not say that for a heathen there is no way [for acquiring possession] at all? — I can answer, No. Have we not an a fortiori [argument]? If a heathen can acquire the person [of an Israelite] with money, how much more so is this the case with the property [of an Israelite]? But why not say that for a heathen there must be two ways of acquiring possession? — But is there not the a fortiori argument [to the contrary]? If a heathen acquires possession of the person [of an Israelite] by one act only, should the Israelite's property be acquired only by two acts? But why not say that [a heathen acquires possession of an Israelite's property] either by means of one or the other! — [The way of acquiring possession] must resemble [what is mentioned in connection with the text] ‘thy neighbour’.^ᵃ^ᵇ^ᶜ^ᵈ^ᵉ^ᶠ^ᵍ^ʰ^ⁱ^ʲ^ᵏ^ˡ^ᵐ^ⁿ^ᵒ^ᵖ^ᵠ^ʳ^ˢ^ᵗ^ᵘ^ᵛ^ʷ^ˣ^ʸ^ᶻ^ᵃᵃ^ᵃᵇ^ᵃᶜ^ᵃᵈ^ᵃᵉ^ᵃᶠ^ᵃᵍ^ᵃʰ^ᵃⁱ^ᵃʲ^ᵃᵏ^ᵃˡ

^ᵃnote:The duty to redeem the first-birth of an ass is indeed immediately after its birth, and the Baraitha which says that redemption does not take place for thirty days means that he does not transgress the command to redeem until the period of thirty days has elapsed.
^ᵇnote:In accordance with the opinion of R. Nahman, who maintains that redemption does not take place before thirty days have elapsed. This seems to contradict the opinion of R. Shesheth.
^ᶜnote:Var. lec.: He either breaks its neck. V. R. Gershom.
^ᵈnote:And since it says: ‘Either he redeems it or breaks its neck’, we infer that redemption only commences after the thirty days and that during the thirty days it is a duty to retain it.
^ᵉnote:We may indeed say that it is a religious duty to retain the first-birth for thirty days and still we do not ex plain the Baraitha cited by Rami b. Hama as being in accordance with R. Nahman's view (Rashi). Sh. Mek.: Raba's reply can be explained as being entirely independent of the opinions of R. Shesheth and R. Nahman and that it merely explains the conflicting statements regarding when redemption should take place.
^ᶠnote:A religious act and duty.
^ᵍnote:I.e., has precedence over.
^ʰnote:Ex. XIII, 13. The verse implies that redemption comes first.
^ⁱnote:Designation, especially the betrothal of a Hebrew handmaid.
^ʲnote:Ex. XXI, 8. The verse implies that the first duty is to betroth her.
^ᵏnote:To marry the wife of a brother who died without issue.
^ˡnote:The ceremony of taking off the brother-in-law's shoe after refusing to marry his brother's widow. Deut. XXV, (5-11).
^ᵐnote:In order to preserve the name of the dead brother.
^ⁿnote:But merely for sexual pleasure, and, since this is the case, it is sexual intercourse with a brother's wife, which is one of the forbidden relations.
^ᵒnote:Lev. XXVII, 27. The verse therefore implies that redemption is a prior duty. Also redemption takes precedence, because where the owner redeems he has to add a fifth part, but in the case of another redeeming, there is no addition of a fifth for the benefit of the sanctuary, as Scripture says in the first part of the verse quoted in this connection: ‘And If it be of an unclean beast, then he shall ransom it according to thy valuation and shall add unto it the fifth part thereof’.
^ᵖnote:A firstling.
^ᵠnote:It is forbidden to sell large cattle to a heathen, because the animal is worked on the Sabbath.
^ʳnote:Both purchasing an animal between them.
^ˢnote:The Israelite in return for attending to the animal receives in payment half of the offspring, but the animal itself belongs to the heathen.
^ᵗnote:The Israelite sharing a half or a third of the offspring.
^ᵘnote:Num. III, 13. The text implies that where a gentile has a share in the mother or an offspring, the firstling is not holy.
^ᵛnote:The first Mishnah in the first chapter of the tractate.
^ʷnote:Palestine is designated as the West, being so situated geographically relative to Babylon, where the Talmud Babli was evolved.
^ˣnote:Supra 5b.
^ʸnote:For only one chapter is devoted to the rules and regulations appertaining to an unclean animal, whereas the remainder of the tractate of Bekoroth deals with the firstling of a clean animal.
^ᶻnote:Into his possession, which is one of the ways of effecting transference between Israelites, whereas with reference to a gentile, the handing over of the money effects transference; v. Glos. s.v. Meshikah.
^ᵃᵃnote:Lev. XXV, 46.
^ᵃᵇnote:Performing some kind of work on the estate. V. Kid, 26a.
^ᵃᶜnote:That it is acquired from him by handing over the purchase money.
^ᵃᵈnote:V. p. 90, n. 3 and Kid, 26a. Similarly, although the person of the heathen is acquired with money, his property may require another form of acquiring possession.
^ᵃᵉnote:Lev. XXV, 14.
^ᵃᶠnote:The expression ‘of thy neighbour's hand’ implies that the object has to be filled from the hands of the seller into the hands of the buyer.
^ᵃᵍnote:Short of actually bringing the object completely into the domain of the Israelite.
^ᵃʰnote:Possession by means of money and meshikah, but not with money alone.
^ᵃⁱnote:Money or Meshikah.
^ᵃʲnote:Lev. XXV, 51. And the verse deals with a gentile who purchases a Hebrew slave.
^ᵃᵏnote:Lev. XXV, 14.
^ᵃˡnote:And that in order to secure possession of an Israelite's chattels, he must transfer them completely to his domain.

²As ‘thy neighbour’ [i.e., an Israelite] acquires possession only in one way, so the heathen acquires possession only in one way. It was argued: Now according to Amemar who said that meshikah effects possession in the case of a heathen, this might be right if he holds according to the opinion of R. Johanan who maintains that according to the Biblical law, money effects possession between Israelites, whereas meshikah does not effect possession; the text ‘to thy neighbour’ serves then the purpose of allowing us to deduce that ‘to thy neighbour’ [i.e., an Israelite] money effects possession, but for a heathen to effect possession meshikah is required. But if he holds according to the opinion of Resh Lakish, who maintains that meshikah is expressly mentioned in the Torah, [with the indicating result that] ‘to thy neighbour’ [an Israelite] with meshikah and for a heathen with meshikah, what need then is there for the text ‘to thy neighbour’? — It can be explained thus: The text means: ‘to thy neighbour’ you return an overcharge, but you do not return an overcharge to a Canaanite [a heathen] — But do we not derive [the exclusion of the law of overcharging in connection with] the Canaanite from the following text: Ye shall not oppress one another? — One text refers to a Canaanite and the other refers to sacred property. And it was necessary [to teach both cases]. For if the Divine Law had written only one text, I might have assumed that, as regards the Canaanite there is no law concerning overreaching, but in regard to sacred property the law of overreaching is enforced. Therefore Scripture teaches us [that this is not so]. This would hold good according to him who says that the robbed object of a Canaanite is forbidden [to be retained]; therefore a scriptural text is necessary to permit [the retention of] overreaching. But if be holds with him who says that the robbed object of a Canaanite is allowed [to be retained], can there be any question about permitting [to retain] overreaching? I can answer: If [Amemar] holds according to him who says that the robbed object of a Canaanite is allowed [to be retained], then perforce he will hold according to the view of R. Johanan. An objection was raised. If one buys broken pieces [of silver] from a heathen and finds among them an idol, if he made meshikah before he had given the purchase money, he should withdraw [from the transaction]. But if he made meshikah after he had given the money, he should carry the benefit derived therefrom to the Dead Sea. Now, if you hold that money effects possession, what need is there for meshikah? — We are dealing here with the case where [the heathen] undertook to act in the matter in accordance with Israelite law. If so, what need is there for money [as a means of effecting possession]? — This is what [the Baraitha] intends to say: Although he had given the money, if he made meshikah, [then he can withdraw], but if not, [he] cannot [do so]. If this is the case, there is a difficulty in the first part [of the Baraitha]? — Said Abaye: The reason of the first part [of the Baraitha] is because it was made in error. Raba said to him: ‘[You say that the reason of] the first part [of the Baraitha] is because it was made in error. But is the last part [of the Baraitha] also not a case of a purchase in error’? Rather, said Raba: Both the first and the last parts deal with the case of a purchase in error; but in [the case stated in] the first part where he had not yet given the money, the idol does not appear to have been in the possession of an Israelite, whereas in the last part [of the Baraitha], where he had given the money, the idol appears to have been in the possession of an Israelite. And Abaye? — He will explain thus. The first part is a case of a purchase made in error, for he did not know of the idol, since he had not yet paid the money. But the last part is a case of a purchase made in error, for since he had given the money, when he was [about] to make meshikah he should have examined the purchase and then made meshikah. R. Ashi said: Since in the first part [of the Baraitha], meshikah does not effect possession, in the last part also, meshikah does not effect possession. But as he mentions meshikah in the first part, he also states meshikah in the last part. Rabina said: Since in the last part meshikah effects possession, in the first part too meshikah effects possession. And what the first part says in effect is this: If he had not given the money, nor made meshikah, he withdraws. What is [then] meant by ‘he withdraws’? — That he can retract his words, for he [the Tanna of the Baraitha] maintains: To retract one's words indicates a want of honesty, but this is the case only with an Israelite dealing with an Israelite, because they stand by their word, whereas in the case of an Israelite dealing with gentiles, since the latter do not stand by their word, it is not so.^ᵃᵐ^ᵃⁿ^ᵃᵒ^ᵃᵖ^ᵃᵠ^ᵃʳ^ᵃˢ^ᵃᵗ^ᵃᵘ^ᵃᵛ^ᵃʷ^ᵃˣ^ᵃʸ^ᵃᶻ^ᵇᵃ^ᵇᵇ^ᵇᶜ^ᵇᵈ^ᵇᵉ

^ᵃᵐnote:I.e., meshikah.
^ᵃⁿnote:I.e., with money and not meshikah, for the verse implies ‘thy neighbour’ with meshikah but not a heathen, and by analogy we assume that the same limitation applies in the case of the form of acquisition which exists for gentiles. i.e., money.
^ᵃᵒnote:B.M. 46b, Kid. 26a.
^ᵃᵖnote:The law of overcharging and overreaching being mentioned later in the same chapter of the Bible.
^ᵃᵠnote:Lev. XXV, 14. The text implies that for a heathen this law does not apply, as the words ‘one another’ refer to Israelites.
^ᵃʳnote:To which also the law does not apply.
^ᵃˢnote:An object dedicated for the Temple, or for some other sacred purpose, and I might have said that secular property should not have an advantage over sacred property in this respect.
^ᵃᵗnote:v. Sanh., Sonc. ed., p. 388, n. 6 and B.M., Sonc. ed., p. 506, n. 9.
^ᵃᵘnote:For since the robbed object of Canaanite may be retained, therefore there is no need to deduce the retention of the overreaching from the text, ‘Thy neighbour’. Consequently the text will imply that although money effects possession in a transaction between Israelites, in the case of heathens meshikah is required. Hence we see that Amemar must necessarily hold according to the opinion of R. Johanan.
^ᵃᵛnote:For an idol in the possession of an Israelite can never be freed from its prohibition, and it is therefore forbidden to derive any profit therefrom.
^ᵃʷnote:Why should his withdrawal cancel the sale? Since he made meshikah, he should be required to carry the benefit to the Dead Sea!
^ᵃˣnote:For he did not know there was an idol and therefore the withdrawal cancels the sale.
^ᵃʸnote:And legally the withdrawal cancels the sale even under the circumstances mentioned in, the last part of the Baraitha, and meshikah is the form here of effecting possession, this having been agreed upon by the parties concerned.
^ᵃᶻnote:On withdrawal he receives back his money from the heathen.
^ᵇᵃnote:And before the purchase is handed over, the buyer does not usually trouble to examine the contents of a purchase.
^ᵇᵇnote:And as he omitted to make the examination, the transaction was valid and, consequently, the meshikah was a genuine one.
^ᵇᶜnote:On R. Ashi's view we are dealing here with a case where the parties did not agree to act according to Jewish law, and therefore money payment is the method of effecting possession of an object bought. And no difficulty can be raised from the last part of the Baraitha, by arguing that, if this be a fact what need is there for meshikah, for meshikah is mentioned here only because it is mentioned in the first part, and there it had to be mentioned to inform us, that it has no effect, since the purchase money was not handed over.
^ᵇᵈnote:When e.g., the parties agree to act according to Jewish law, i.e., use meshikah as a form of transference.
^ᵇᵉnote:Since neither meshikah nor money did take place.