בכורות 56:2 — Soncino English Talmud

And why should not [the harlot] herself tithe it? — The reference is to a heathen harlot. But does not [the Baraitha] deal with an Israelitish harlot and let her tithe it herself? — This is what [the Baraitha] informs us [by implication]: That in the case of an Israelitish harlot, the animal has not the law of ‘hire’ as Abaye taught. For Abaye said: The hire of a heathen harlot is forbidden [for the altar] and a priest who has sexual relations with her is not liable to lashes for transgressing the negative precept: Neither shall he profane his seed among his people. But the hire of an Israelitish harlot is permitted [for the altar] and a priest, who has sexual relations with her is liable to lashes for transgressing the negative precept: ‘Neither shall he profane his seed among his people’. The hire of a heathen harlot is forbidden [for the altar] because we form an analogy between the expressions ‘abomination’ [mentioned in connection with a harlot] and ‘abomination’ mentioned in connection with forbidden relatives. Just as in the case of forbidden relations betrothal takes no effect, so a harlot [whose offering is forbidden] is one in whose case betrothal takes no effect. ‘And the priest who has sexual relations with her is not liable to lashes’, because Scripture says: ‘Neither shall he profane his seed among his people’; the Divine Law says he must not profane his seed, but in this case it is not his seed. MISHNAH. IF BROTHERS BECAME PARTNERS, THOUGH THEY ARE STILL BOUND TO PAY AGIO, THEY ARE EXEMPT FROM THE TITHE OF CATTLE. AND WHEN THEY BECOME LIABLE TO TITHE OF CATTLE, THEY ARE EXEMPT FROM PAYING AGIO; IF THEY ACQUIRED ANIMALS [THE CATTLE] FROM THE ESTATE, THEY ARE BOUND [TO TITHE THEM]. BUT IF NOT, THEY ARE EXEMPT FROM TITHING; IF THEY FIRST DIVIDED UP THE ESTATE AND THEN AGAIN BECAME PARTNERS, THEY ARE BOUND TO PAY AGIO AND ARE EXEMPT FROM TITHE OF CATTLE. GEMARA. Our Rabbis taught: [Scripture says]: ‘Shall be thine’, intimating, but not that is held in partnership. You might have thought that exemption applies even if one acquired the animals from the [paternal] estate. Therefore, the text states: ‘Shall be’. But is not this written in connection with the case of a first-born? — If it has no bearing on the case of a first-born, since the law of the first-born applies even in the case of a partnership, because it is written. And the firstlings of your herds and of your flocks, then apply it to the case of tithing animals. Said R. Jeremiah: Sometimes they are bound to tithe and to pay agio and sometimes they are exempt from both. Sometimes they are bound to pay agio and are exempt from tithing [the animals] and sometimes they are bound to tithe [the animals] and are exempt from paying agio. They are bound to tithe the animals and pay agio in the case where they divided the monies but not the animals. They are exempt from both, where they divided the animals but not the monies. They are bound to pay agio and are exempt from tithing animals where both animals and monies were divided. They are bound to tithe and are exempt from paying agio where neither monies nor animals were divided. Is not all this obvious? — He [R. Jeremiah] needed to inform us of the case where the animals were divided but not the monies. You might have thought that since they divided the animals, they have thus shown their intention of dividing the rest, and therefore they should be bound to pay agio. He therefore informs us that [this is not so]. Said R. ‘Anan: This is meant only when they divided kids against he-goats [in accordance with their value] and he-goats against kids [in accordance with their value] but where they divided kids against kids and he-goats against he-goats one can say: ‘This is the portion which was his from the outset’. But R. Nahman says: Even if they divided kids against kids and he-goats against he-goats we do not say: ‘This was the part which was his at the outset’. And R. Eleazar also says: This is meant only when they divided nine large animals against ten small ones [according to their value], or ten small animals against nine large ones. But if they divided nine animals against nine or ten animals against ten, one can say: ‘This is the part which was his from the outset’. But R. Johanan says: Even if they divided nine animals against nine or ten animals against ten, one does not say: ‘This is the part which was his at the outset’.^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

^ᵃnote:Since an embryo is not regarded as ‘hire’ but as a gift and can be eaten in its blemished state if it came forth the tenth. Why therefore must they proceed to buy it from her? (Rashi). R. Gershom explains that hire constitutes no prohibitions as regards tithing an animal, the rule of ‘lewdness’ not applying to an animal tithed, as is explained infra 57a.
^ᵇnote:To whom the law of tithing animals is not applicable.
^ᶜnote:And is even permitted for the altar, the law of ‘hire’ only applying to a heathen harlot.
^ᵈnote:Lev. XXI, 15.
^ᵉnote:Deut. XXIII, 19.
^ᶠnote:Lev. XVIII, 26.
^ᵍnote:For the penalty of kareth (v. Glos.) applies to such cases, and all are agreed that betrothal cannot take effect in them.
^ʰnote:And a heathen's betrothal also is no betrothal, and therefore her hire is forbidden.
^ⁱnote:For the offspring has the status of the gentile mother.
^ʲnote:Having divided their father's estate and then become partners.
^ᵏnote:When they bring their half-shekels to the Temple. It was customary on such occasions to pay a surcharge to compensate for any loss incurred in the Temple shekels collection in changing the shekels or half shekels into other money, v. Shek. I,7. Even if they wish to give a whole shekel together, they must pay double agio as if they were two strangers.
^ˡnote:For partners are exempt from tithing animals born to them so long as partnership lasts.
^ᵐnote:As, for example, where the estate was not divided and it is still the inheritance of their father.
^ⁿnote:If the two brothers gave a whole shekel, for it is as if their father were alive, he being able to exempt them when alive from paying agio.
^ᵒnote:The Mishnah here does not exactly mean by the word in bought with money. for an animal bought is exempt from the law of tithing, but only that the animals fell to them as an inheritance from their father.
^ᵖnote:Lit., ‘that which belongs to (i.e., is the possession of) the house’.
^ᵠnote:But are exempt from agio. The clause IF THEY ACQUIRED etc. is an explanation of the previous clause of the Mishnah, as follows: In saying that where tithing is required there is exemption from agios, we mean where they acquired etc.
^ʳnote:If they divided up the estate and then became partners again, the animals being born subsequently.
^ˢnote:This passage to the end of the Mishnah is an explanation of the previous clause; But if not etc. For further notes v. Hull., Sonc. ed., p. 25b.
^ᵗnote:Num. XVIII, 15.
^ᵘnote:The text implying that you give the animal which belongs to you by yourself but not that which belongs to you in partnership.
^ᵛnote:That even in such a case he gives the animal.
^ʷnote:Deut. XII, 6. Your herds etc., the plural number being used.
^ˣnote:And became partners afterwards; hence they pay agio.
^ʸnote:And since the animals were not divided, they are still the fathers’ inheritance and must be tithed.
^ᶻnote:As I could have derived these ruling from the Mishnah. What need has R. Jeremiah to teach us all this?
^ᵃᵃnote:That we adopt the lenient view and exempt in both.
^ᵃᵇnote:When we say that when they divided and then became partners they are exempt from tithing.
^ᵃᶜnote:For in that case one cannot say that this is the part which was due from his father's inheritance from the beginning, because at the death of their father, each brother acquired a half of the kids and a half of the goats. Consequently, the animals which were present at the time of the division of the estate are not subject to the tithe, as they come under the law of animals bought, while those which are born subsequently, are exempt on account of the brothers becoming partners.
^ᵃᵈnote:Because we hold the principle of bererah (retrospective designation; v. Glos.) and therefore each brother's share is still regarded as an inheritance, even after the brothers became partners again. Consequently, the animals born before the dividing up of the estate are not considered as animals bought to be exempted from tithing, nor are those that are born subsequently considered as born to brothers who hold the status of partners.
^ᵃᵉnote:For we do not hold the principle of bererah. Therefore at first when the division takes place the animals are regarded as bought, and those born later are regarded as born to brothers who hold the status of partners.
^ᵃᶠnote:The difference between R. Eleazar and R. Johanan is in principle the same as that between R. Anan and R. Nahman.
^ᵃᵍnote:Or lean ones (R. Gershom).