Bava Metzia 6b (ו:) — the Talmud in English

of that

bathhouse,

a bathhouse,

over which two people were arguing,

for two people were quarrelling over to whom it belonged:

this one said “

It is mine,” and

that one said “

It is mine.”

Each of them claimed that the bathhouse belonged to him, and neither of them had proof of his claim.

One of them arose and consecrated it.

One of them consecrated the bathhouse.

They withdrew from it,

they stopped bathing there,

Rav Ḥananya and Rav Oshaya, and all the Sages,

out of concern that the one who consecrated it was in fact the owner of the bathhouse and his consecration took effect, despite the fact that he had not seized it.

Rav Oshaya said to Rabba: When you go,

when you go

before Rav Ḥisda,

to the place called

“Kafrei,” ask him,

ask him what the law is concerning this bathhouse—whether it is permitted or forbidden to bathe there.

Rabba went, and on his way to “Kafrei” he passed through Sura, the place where Rav Hamnuna was.

When he came,

when Rabba arrived

in Sura,

he asked Rav Hamnuna about the law of the bathhouse.

Rav Hamnuna said to him:

The straightforward resolution of this problem is

the Mishna,

the Mishna [which is explained in a baraita

is!

As we learned in tractate Taharot [4:12]:

uncertain firstborns,

for example, if an animal gave birth to an offspring and it is uncertain whether this is its first offspring, in which case it has the laws of a firstborn, or whether it had already given birth in the past, in which case this is not a firstborn.

Whether a human firstborn,

for example, if his mother had previously miscarried a fetus, and it is unknown whether that was an actual offspring and was the firstborn, so that the one born afterward is not a firstborn, or whether that miscarriage was merely “wind,” meaning that it was not something fit to be called an offspring. Consequently, it is uncertain whether this child is obligated in redemption of the firstborn or not.

And whether an animal firstborn, whether of pure animals,

which are sanctified with the sanctity of a firstborn offering,

or of impure animals,

namely, a firstborn donkey, which must be redeemed with a lamb and given to a priest, and for as long as it has not been redeemed it is forbidden to use. And this firstborn was an uncertain firstborn.

The law is that

the claimant,

must provide the proof!

Rav Hamnuna assumed that if the Israelite owner is holding the uncertain firstborn, the priest must bring proof that it is a firstborn in order to take it.

And if the priest seized it from the Israelite, and the Israelite remained silent and ultimately shouted, the Israelite must bring proof that it is not a firstborn in order to take it from the seizing priest.

This means that this Mishna establishes that the priest’s seizure is effective for taking possession of property concerning which it is uncertain whether it belongs to the Israelite or to him, since at the time of the seizure the Israelite did not shout, but only did so afterward.

Rav Hamnuna continues his proof concerning consecration:

And it was taught concerning it,

and we learned in a baraita concerning these words of the Mishna:

They are forbidden,

these uncertain firstborns [a firstborn of a pure animal and a firstborn donkey]

in shearing and labor,

just as a definite firstborn and a definite firstborn donkey are forbidden, because perhaps they are sanctified with the sanctity of a firstborn.

Rav Hamnuna assumed that since firstborns are among the twenty-four gifts of the priesthood, their sanctity likewise derives only from their status as “gifts of the priesthood.” But if there is no law requiring them to be given to a priest, they have no sanctity at all.

Therefore, Rav Hamnuna proved from here the straightforward resolution of the problem concerning the bathhouse:

But here, where it says, “

If a priest seized it, it is not removed from his possession,”

as it teaches,

for we learned in the Mishna there, “

The claimant must provide the proof,”

which implies that if the uncertain firstborn is now in the priest’s possession [because he seized it from the Israelite, and the Israelite remained silent and ultimately shouted], the Israelite must bring proof in order to take it from him. It is evident that this Mishna maintains that the priest’s seizure of the uncertain firstborn leaves the firstborn in his possession.

And

the baraita added to these words of the Mishna that even

if he did not seize it,

the priest, but it is still in the possession of the Israelite, nevertheless

they are forbidden,

the uncertain firstborns,

in shearing and labor.

And since, according to Rav Hamnuna’s assumption, the sanctity of a firstborn depends on its being a “gift of the priesthood,” and if there is no law requiring it to be given to a priest, it also has no firstborn sanctity, it is evident that the possibility of the priest’s seizure is what gives the uncertain firstborn its sanctity and causes it to be forbidden in shearing and labor. The possibility of his seizing it and leaving the uncertain firstborn in his possession defines the uncertain firstborn as a gift of the priesthood; without this, it would not be sacred at all. It is evident that even though the firstborn is not currently in the priest’s possession, the possibility of seizure causes sanctity to take effect upon it.

And from here one can also derive the law concerning the bathhouse, whose ownership is uncertain between the two claimants, and one of them consecrated it: his right to seize it [by virtue of the principle “Whoever is stronger prevails”] should enable him to consecrate the bathhouse, just as we find with an uncertain firstborn, where the priest’s right to seize it causes the sanctity of a firstborn. There is no deficiency here of consecrating an item that is not in one’s possession, because this deficiency applies only where he has no right of seizure, or where a robber acquires the legal rights of robbery in the stolen object.

Rabba said to him,

to Rav Hamnuna: Are you bringing proof from the law of

the sanctity of a firstborn

for the consecration of the bathhouse!?

After all, these are entirely different types of sanctity:

For

in truth, I can say to you,

I can tell you that even if you say that

if a priest seized

the uncertain firstborn,

it is removed from his possession,

and he has no right of seizure at all, nevertheless,

even so, they are forbidden,

the uncertain firstborns,

in shearing and labor,

because

sanctity that comes of itself is different!

That is, Rabba’s claim is that one cannot compare the sanctity of a firstborn, which is sanctity that comes of itself and takes effect upon the firstborn even if it is not consecrated through a verbal declaration, with the consecration of the bathhouse, which takes effect only by virtue of the owner when he consecrates it verbally.

Therefore, the sanctity of the firstborn takes effect in a case of uncertainty, even if the priest has no right of seizure at all. Conversely, the consecration of the bathhouse cannot take effect even if we say that the consecrator has a right of seizure, because a person cannot consecrate an item that is not in his possession [as in the position presented by the Gemara on the previous amud concerning the consecration of a cloak held by two people]. Here, since the claimant to ownership of the bathhouse consecrated it without seizing it, he cannot consecrate property that is still not in his possession.

Therefore, one cannot resolve from the Mishna and baraita concerning uncertain firstborns the Gemara’s problem about two people disputing ownership of the bathhouse, where one of them consecrated it, as Rav Hamnuna sought to resolve it.

Rav Ḥananya said to Rabba: It was taught

[we find a Mishna]

that supports you,

that supports your position that if a priest seized it, it is removed from his possession, for we find a Mishna from which it is evident that the uncertain firstborn is removed from the seizing priest.

And since, on the other hand, we learned in the Mishna that uncertain firstborns are forbidden in shearing and labor, it necessarily follows that the sanctity of a firstborn does not depend on the possibility of seizure. Rather, even if the priest has no right of seizure at all, the sanctity of the uncertain firstborn nevertheless takes effect, rendering it forbidden in shearing and labor.

And this is how Rav Ḥananya proves his position, that with regard to an uncertain firstborn we say, “If a priest seized it, it is removed from his possession”:

As we learned [in tractate Bekhorot 9a]:

The uncertain ones,

lambs with which uncertain firstborn donkeys were redeemed, which are called “uncertain redemptions of a firstborn donkey,”

enter the pen to be tithed.

That is, if there was an uncertain firstborn donkey, and it is unknown whether its mother had already given birth before it was born, the Israelite must redeem it with a lamb, but he need not give that lamb to the priest, since the lamb has no sanctity at all; it is merely subject to the law requiring property to be given to a priest. Since this is an uncertain redemption, we say, “The claimant must provide the proof,” and it remains in the Israelite’s possession.

Therefore, if the Israelite had several other lambs and was obligated to tithe them in accordance with the law of “animal tithe,” this uncertain lamb may join the count of the lambs [which leave the pen one by one so that the tenth lamb to leave may be tithed], and we are not concerned that the status of animal tithe might take effect upon this lamb, because it is not considered the priest’s property, since it remains in the Israelite’s possession by virtue of the principle, “The claimant must provide the proof.”

And Rav Ḥananya argues:

And if it would enter your mind

that the priest has the right to seize this lamb, so that

if a priest seized it, it would not be removed from his possession, why do the uncertain ones enter

these lambs

the pen

to be tithed together with the other lambs?

After all, if the uncertain lamb leaves the pen as the tenth in the count of those leaving, the status of animal tithe will take effect upon it, and

it is found that this one,

the Israelite,

exempts his property

the rest of his lambs from the obligation of the animal-tithe offering

with the property of a priest.

Since the priest has a right of seizure in the lamb, it is considered, to some degree, also “the property of a priest,” and it is impossible for the Israelite to exempt his property [the other lambs] from the obligation of tithing by designating this lamb as an animal-tithe offering, because this lamb is the priest’s property!

Rather, it necessarily follows that the priest has no right of seizure in an uncertain firstborn, and if a priest seized it, it is removed from his possession; thus the uncertain lamb is properly considered the Israelite’s property alone.

Rav Ḥananya proves that since, if a priest seized it, it is removed from his possession, the Mishna that says that uncertain firstborns are forbidden in shearing and labor must necessarily be explained as referring to the sanctity of a firstborn that does not depend on the priest’s right to seize the firstborn. Rather, it is sanctity that takes effect of itself in every case, and not as Rav Hamnuna assumed—that the sanctity of a firstborn depends on the law requiring it to be given to a priest.

Abaye said

to Rav Ḥananya:

If it is because of this,

if it is because of the Mishna’s statement that the uncertain ones enter the pen to be tithed,

it does not support him!

This is not support for Rabba [Abaye’s teacher], who says that if a priest seized it, it is removed from his possession!

Rather, it can be said that if a priest seized it, it is not removed from his possession, and nevertheless there is no difficulty concerning how the uncertain firstborn enters the pen to be tithed, despite the concern that it might leave as the tenth, with the result that the Israelite would exempt himself with a priest’s property:

For

here,

in this Mishna,

with what are we dealing? With a case where he has no

the Israelite

more than nine

lambs,

and it,

the uncertain lamb, completes them to ten lambs, at which point the obligation of animal tithe begins.

Therefore, even if you say that if a priest seized it, it is not removed from his possession, this is not considered a case where he exempts his property with a priest’s property.

For either way: If

this lamb

is subject to the obligation,

meaning that it is not a firstborn-donkey redemption and is subject to the obligation of animal tithe, then

its owner properly tithes

it when it leaves the pen as the tenth, as an animal-tithe offering, and he is not exempting his property with a priest’s property.

And

if it is not subject to the obligation

of animal tithe, because it is a firstborn-donkey redemption and is the priest’s property, then even if the Israelite designates it as an animal-tithe offering, he is not exempting his property with a priest’s property, because the Israelite’s property is not subject to animal tithe: he has only nine lambs of his own, while the tenth is the priest’s lamb, and

nine

lambs

are not subject to tithing!

They are not obligated in animal tithe at all!

And therefore, no proof can be brought from here that if a priest seized it, it is removed from his possession.

Afterward,

later,

Abaye said: What I said is not a matter,

what I said—that there is no support for Rabba from what we learned, “The uncertain ones enter the pen to be tithed,” and that I established this as referring to nine lambs plus the uncertain one, which is tithed either way—is not correct.

This is because

an uncertain one,

any case involving uncertainty with regard to animal tithe,

is not subject to tithing

at all; there is no obligation to tithe it, and one does not tithe even “either way.”

And if the Mishna says that the uncertain ones enter the pen to be tithed, it necessarily follows that the uncertain ones are considered the Israelite’s property entirely, and there is no uncertainty concerning their obligation of tithing. For if the priest had a possible claim to acquire this lamb, then all the other lambs would be “possibly obligated in animal tithe and possibly exempt.” In such a situation, they are entirely exempt from tithing, and there would be no need to tithe them either way. This is as Abaye now proves from the Mishna in Bekhorot: an animal whose obligation in animal tithe is uncertain is entirely exempt from tithing.

As we learned [in tractate Bekhorot 58b]: A person who had many lambs in his pen and brought them out through the opening of the pen one by one, counting them in order so as to tithe every lamb that emerged tenth in the count, and before he reached the count of ten, it happened that

one of those counted jumped

among them

that had already emerged and been counted

back into

the many lambs that were in the pen and had not yet emerged or been counted.

The law is that

all of them,

both the lambs that had already emerged and been counted and the lambs that remained in the pen and had not emerged or been counted,

are exempt

from the obligation of animal tithe, even if there were a thousand lambs in the pen!

The lambs that had already emerged and been counted are exempt from the obligation of animal tithe even though ultimately the tenth lamb in the count was not designated for them, because the verse states, “Whatever passes under the rod.” The verse teaches that every lamb that passed under the rod in the count in order to tithe the tenth as animal tithe is exempt from the obligation of animal tithe, even if ultimately the tenth lamb was not tithed.

And the many lambs that remained in the pen are exempt from animal tithe because the lamb that jumped back into them is mixed among them, and that lamb itself is exempt from the obligation, since it had already passed under the rod and been counted in the appropriate count that exempts it from the obligation of animal tithe. Consequently, each lamb is possibly the exempt lamb, and therefore they cannot be counted at all; rather, all of them are exempt from the obligation of animal tithe, since it is impossible to count and tithe them.

From this Abaye now argues:

And if it would enter your mind

to say, as I initially assumed, that even

an uncertain one,

that is, an animal whose obligation in animal tithe is uncertain,

requires tithing,

and must be tithed on the basis of “either way,” as I said—that if there are nine lambs obligated in animal tithe and one uncertain lamb, all of them must be tithed because of the uncertainty—then there is a difficulty: Why are all the lambs in the pen exempt merely because each lamb is possibly the exempt lamb that jumped back inside?

Let them be tithed either way!

They should bring out all the lambs that remained in the pen and count them one by one, and tithe every lamb that emerges tenth as animal tithe. In this manner, all the lambs would be exempt either way:

For if

the lamb that emerges tenth is indeed

subject

to the obligation,

because the exempt lamb was not among the nine lambs that emerged before it, then

properly

he

tithes

it, the status of animal tithe takes effect upon it, and the nine lambs that emerged before it are exempt.

And if

the lamb that emerges tenth

is not subject to the obligation,

because the exempt lamb was among the nine lambs that emerged before it, and consequently the lamb that emerges tenth is not tenth in the count but only ninth, so there is no obligation to apply the status of animal tithe to it, nevertheless

the lambs

all the lambs that emerge

in the “appropriate count” are exempt.

That is, since at the time the lambs emerged and were counted there were still other lambs in the pen fit to join them in a count of ten lambs, the very act of counting them and passing them under the rod exempts them from the obligation of animal tithe—

as Rabba said: An appropriate count—

exempts!

For example, a person had ten lambs and began counting them one by one in order to tithe the lamb that emerged tenth as animal tithe. After five lambs had emerged from the opening of the pen, one of the lambs remaining inside died, so that he no longer had a tenth lamb to tithe. The five lambs that had already been counted under the rod in order to tithe them were exempt from the obligation of animal tithe by the very fact that they had passed “under the rod” and been counted. For an appropriate count for animal tithe exempts the lambs that were counted, even if ultimately he did not designate the tenth lamb for animal tithe. If so, why, when one of those that had been counted jumped back into the pen, are all of them exempt? After all, it is possible to count and tithe them either way?!