Bava Metzia 6b — the Talmud in English

that incident ![](pamud.bmp "

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a bathhouse,

a bathhouse,

over which two were quarrelling,

that two people were quarrelling over it, to whom it belonged:

this one said “

It is mine,”

and this one said “

It is mine.”

Each of them claimed that the bathhouse belonged to him, and neither of them had evidence for his words.

One of them arose and consecrated it.

One of them consecrated the bathhouse.

They withdrew from it,

they ceased bathing in it,

Rav Hananya and Rav Oshaya, and all the Rabbis,

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

Rav Oshaya said to Rava: When you go

when you go

before Rav Hisda,

to the place called

“Kafrei,” ask him,

ask him what the law of this bathhouse is, whether it is permitted or forbidden to bathe in it.

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

When he came,

when Rava arrived

at 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,

a Mishna [explained in the beraita

is!

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

uncertain firstborns,

for example, if an animal gave birth to an offspring, and it is uncertain whether it 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 it 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 offspring and was the firstborn, so that the one born afterward is not a firstborn, or whether that fetus was merely “wind,” that is, it was not something fit to be called an “offspring.” And it is therefore uncertain whether this offspring is obligated in the redemption of the firstborn or not.

And whether an animal firstborn, whether of pure animals,

which are consecrated with the sanctity of a firstborn offering,

or of impure animals,

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

The law is that

the one who takes out from his fellow—

upon him is the proof!

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

And if the kohein seized it from the Israelite, and the Israelite remained silent and in the end protested, the Israelite must bring proof that it is not a firstborn in order to take it out of the possession of the seizing kohein.

That is, this Mishna makes clear that the kohein’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 protest, but only afterward.

And Rav Hamnuna continues his proof concerning consecration:

And it was taught concerning it,

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

forbidden

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

in shearing and in labor,

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

And Rav Hamnuna assumed that since firstborns are among the twenty-four gifts of the priesthood, their sanctity too derives only from their being “gifts of the priesthood.” But if there is no law requiring their giving to a kohein, they have no sanctity at all.

And therefore Rav Hamnuna proved from here the straightforward resolution of the problem concerning the bathhouse:

But here, where it says “

if the kohein seized it, they do not take it from him,”

as it teaches,

for we learned in the Mishna there, “

the one who takes out from his fellow, upon him is the proof,”

and it implies that if the uncertain firstborn is now in the possession of the kohein [because he seized it from the Israelite, and the Israelite remained silent and in the end protested], the Israelite must bring proof in order to take it from him. And it is proven that this Mishna holds that the kohein’s seizure of the uncertain firstborn leaves the firstborn in his possession.

And

the beraita added to these words of the Mishna that even

when he did not seize it,

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

forbidden

are the uncertain firstborns

in shearing and in labor.

And since according to Rav Hamnuna’s assumption the sanctity of the firstborn depends on its being a “gift of the priesthood,” and if there is no law requiring its giving to a kohein, it also has no firstborn sanctity, it is proven that the possibility of the kohein’s seizure is what gives the uncertain firstborn its sanctity, and what forbids it in shearing and in labor. For the possibility of his seizing and leaving the uncertain firstborn in his possession defines the uncertain firstborn as a gift of the priesthood, and without this it would not be consecrated at all. And it is proven that even though at present the firstborn is not in the possession of the kohein, nevertheless the possibility of seizure imposes sanctity upon it.

And from here you also learn concerning the bathhouse, regarding which it is uncertain to which of the two it belongs, and one of them consecrated it: his right of seizure [by virtue of “whoever is stronger prevails”] should enable him to consecrate the bathhouse, just as we find in the case of an uncertain firstborn, where the kohein’s right of seizure is what causes the sanctity of a firstborn. And there is no deficiency here of one who consecrates something not in his possession, for this deficiency was stated only where he has no right of seizure, or where the robber has the acquisitions of robbery in the robbed object.

Rava said to him

to Rav Hamnuna: Do you mean to bring proof from the law of

firstborn sanctity

to the consecration of the bathhouse!?

After all, these are entirely different sanctities:

For

in truth, I can say to you,

I say to you that even if you say

the kohein seized

the uncertain firstborn,

they take it from him,

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

even so the uncertain firstborns are forbidden

the uncertain firstborns

in shearing and in labor,

because

sanctity that comes on its own is different!

That is, Rava’s claim is that one may not compare the sanctity of a firstborn, which is sanctity that comes on its own and takes effect upon the firstborn even if they do not consecrate it through verbal consecration, with the consecration of the bathhouse, which takes effect only by virtue of the owner when he consecrates it with his mouth.

And therefore the sanctity of the firstborn takes effect on account of uncertainty, even if the kohein 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 something that is not in his possession [as in the position brought by the Gemara on the previous page concerning the consecration of a garment held by two people]. And 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.

And therefore it is impossible to resolve from the Mishna and the beraita concerning uncertain firstborns the Gemara’s problem regarding two people disputing ownership of the bathhouse, where one of them consecrated the bathhouse, as Rav Hamnuna wished to resolve it.

Rav Hananya said to Rava: It was taught [

we find a Mishna]

that supports you,

that supports your words, that if a kohein seized it, they take it from him, for we find a Mishna from which it is proven that they take the uncertain firstborn from the seizing kohein.

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

And thus Rav Hananya proves his words, that with regard to an uncertain firstborn they say, “if a kohein seized it, they take it from him”:

For we learned [in tractate Bekhorot 9a]:

the uncertain ones,

lambs with which they redeemed uncertain firstborn donkeys, and which are called “uncertain ones of the redemption 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 previously given birth before it was born or not, the Israelite must redeem it with a lamb, but he need not give the lamb to the kohein, since this lamb has no sanctity at all; rather, it has only the law of giving property to a kohein. And since it is an uncertain redemption, we say, “the one who takes out from his fellow, upon him is the proof,” and it remains in the possession of the Israelite.

And therefore, if the Israelite had several other lambs, and he is obligated to tithe them according to the law of “animal tithe,” this uncertain lamb can join the count of the lambs [which leave the pen one by one in order to tithe the lamb that leaves tenth], and we are not concerned if the designation of animal tithe takes effect upon this lamb, because it is not considered the kohein’s property, since it remains in the Israelite’s possession, by the law of “the one who takes out from his fellow, upon him is the proof.”

And Rav Hananya claims:

And if it enters your mind

that the kohein has the right to seize this lamb, so that if

the kohein seized it, they would not take it from him, why do the uncertain ones enter

these uncertain ones

the pen

to be tithed together with the other lambs?

But if the uncertain lamb were to leave the pen as the tenth in the count of those leaving, the designation of “animal tithe” would take effect upon it, and

it would be found that

the Israelite

exempts his property

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

with a kohein’s property.

For since the kohein has the right to seize the lamb, it is considered, to some degree, also “the kohein’s property,” and it is impossible for the Israelite to exempt his property [the other lambs] from the obligation of animal tithe by separating this lamb as an animal-tithe offering, since this lamb is the kohein’s property!

Rather, necessarily, the kohein has no right of seizure in the case of an uncertain firstborn, and if a kohein seized it, they take it from him; and the uncertain lamb is properly considered the Israelite’s property alone.

And Rav Hananya proves that since if a kohein seized it they take it from him, necessarily the reason for the Mishna that says that uncertain firstborns are forbidden in shearing and in labor is that the sanctity of a firstborn does not depend on the kohein’s right to take possession of the firstborn, but is sanctity that takes effect on its own in every case, and not as Rav Hamnuna assumed, that the sanctity of the firstborn depends on the law requiring it to be given to a kohein.

Abaye said

to Rav Hananya:

If it is because of this,

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

it does not support the Master!

This is not support for Rava [Abaye’s teacher], that if a kohein seized it, they take it from him!

Rather, it is possible to say that if a kohein seized it, they do not take it from him, and nevertheless there will be no difficulty as to how the uncertain firstborn enters the pen to be tithed, when there is concern that it will leave tenth and it will be found that the Israelite exempted himself with a kohein’s property:

For

here, [

in this Mishna]

with what are we dealing? For example, where he has no

the Israelite

more than nine

lambs,

and it,

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

And therefore, even if you say that if a kohein seized it, they would not take it from him, this is not considered that he exempts his property with a kohein’s property.

For either way: if

this lamb

is subject to the obligation,

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

he properly tithes

it, its owner, when it leaves the pen tenth, as an animal-tithe offering, and he does not exempt his property with a kohein’s property.

And

if it is not subject to the obligation

of animal tithe, because it is the redemption of a firstborn donkey, and it is the kohein’s property, then even if the Israelite separates it as an animal-tithe offering, he does not exempt his property with a kohein’s property, because the Israelite’s property is not subject to the obligation of animal tithe, since he does not have nine lambs of his own, whereas the tenth is the kohein’s lamb, and

nine

lambs

are not subject to tithing!

They are not obligated in animal tithe at all!

And if so, it cannot be proven from here that if a kohein seized it, they take it from him!

Afterward,

later,

Abaye said: It is not a matter that I have said,

what I said—that there is no support for Rava from what we learned, “the uncertain ones enter the pen to be tithed,” and I established that it refers to nine lambs and this one, and one tithes it either way—is not correct.

This is because

when it is uncertain,

every place where there is uncertainty concerning animal tithe,

it is not subject to tithing

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

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

For we learned [

in tractate Bekhorot 58b]: One who had many lambs in the pen, and brought them out from the entrance of the pen one by one, and counted them in order to tithe every one that left tenth in the count, and before he reached the counting of the tenth, it happened that

one of those counted jumped [

that had left and been counted]

among them,

into the many lambs that were in the pen, and had still not left and had not been counted.

The law is that

all of them,

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

are exempt

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

For those lambs that had already left and been counted are exempt from the obligation of animal tithe, despite the fact that in the end they did not separate the tenth one for them in the count, because the verse says, “all that passes under the rod.” The verse teaches that every lamb that passed in the count under the rod in order to tithe the tenth as animal tithe is exempt from the obligation of animal tithe, even if in the end they did not tithe the tenth as animal tithe.

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

And from now on Abaye argues:

And if it enters your mind

to say as I initially assumed, that even

something uncertain,

that is, something uncertainly subject to the obligation of animal tithe,

requires tithing,

one must tithe it on the basis of “either way,” in the manner I said—that if there are nine lambs obligated in animal tithe and one uncertain lamb, one must tithe all of them because of the uncertainty—then there is a difficulty: why were all the lambs in the pen exempted because there is uncertainty concerning each and every lamb that perhaps it is the exempt lamb that jumped inside?

Let him tithe them either way!

Let him pass all the lambs that remained in the pen, count them one by one, and tithe every lamb that passes tenth as animal tithe, and thereby exempt all the lambs either way:

For if

the lamb that leaves tenth is indeed

subject

to the obligation,

since the exempt lamb was not among the nine lambs that left before it, then

properly

he

tithes

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

And if

the lamb that leaves tenth

is not subject to the obligation,

because among the nine lambs that left before it was the exempt lamb, which is not included in the count of the ten lambs, and it follows that the lamb that leaves tenth is not the tenth in the count but only the ninth, and there is no obligation to impose upon it the designation of animal tithe, nevertheless

the lambs that leave

all the lambs that leave

in the “proper count.”

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

for Rava said: A proper count—

exempts!

For example, a person who had ten lambs, and began counting them one by one in order to tithe the lamb that leaves tenth as animal tithe, and after five lambs had left the entrance of the pen, one of the lambs inside the pen died, and he no longer has a tenth lamb to tithe, the five lambs that had already been counted under the rod in order to tithe them were exempted from the obligation of animal tithe by the very act of passing and counting them “under the rod.” For a proper count for animal tithe exempts the lambs that were counted, even if in the end he did not separate the tenth as tithe. And if so, why, when one of those counted jumped back into the pen, are all of them exempt? After all, it is possible to count them and tithe them either way?!