Bekhorot 28b (כח:) — the Talmud in English

Rav Naḥman bar Yitzḥak said:

The Mishna is also precise

that they disagree with regard to bodily blemishes that do not change.

As it teaches: Rabbi Meir says: Since it was slaughtered without the authorization of an expert, it is forbidden.

This indicates that the reason Rabbi Meir forbids it is only because it was slaughtered without the instruction of a Sage. But if their dispute concerned a blemish in the membranes of the eye, the Mishna should have taught: Rabbi Meir forbids it, since such blemishes change.

Learn from this: Rabbi Meir imposed a penalty.

And we conclude:

Learn from this.

They raised a dilemma:

When we say that we decree with regard to bodily blemishes

because of

blemishes

that change,

do we say

that all of them change? And this is the question:

Do all blemishes in the membranes of the eye change?

Or perhaps: There are

blemishes in the eye

that change, and there are some that do not change.

What practical difference is there?

In any event, it is forbidden, as perhaps the blemish changed.

And we explain:

To discredit witnesses.

If witnesses came and testified before us that a blemish found in the membranes of the eye had not changed after slaughter from what it had been beforehand,

If you say that all of them change,

these witnesses

are liars.

But if you say that there are

blemishes

that change, and there are

blemishes

that do not change—

we rely on them.

The practical difference is according to Rabbi Yehuda, who does not impose a penalty because the owner did not show the animal to a Sage before slaughter; rather, he is concerned that perhaps the blemish changed after slaughter. Therefore, in a case where witnesses testify that it did not change, the animal would be permitted.

What

is the conclusion?

Come and hear: Rabba bar bar Ḥana said that Rabbi Yoḥanan said: Rabbi Yoshiya of Usha told me: Come and I will show you

blemishes

in the membranes

of the eye

that change.

And we infer:

From his saying to him, “Come and I will show you,” it follows that there are

blemishes in the membranes of the eye

that change, and there are some that do not change.

He wished to show him that sometimes a blemish changes.

We learned in the Mishna:

If one who is not an expert saw the firstborn, and it was slaughtered on his instruction—

it must be buried.

And we establish: Since it teaches that it must be buried, this indicates that this applies even when it has a permanent blemish.

Shall we say that the anonymous Mishna is in accordance with Rabbi Meir,

who says that in every case a penalty is imposed?

And we reject this:

Perhaps it is speaking

of a blemish that is

in the membranes of the eye, and everyone agrees

that it must be buried, because we are concerned that perhaps it changed.

We learned in the Mishna:

And he shall pay from his own resources.

The tanna taught: When he pays

the priest, he does not pay the value of the entire animal. Rather, he

pays one-quarter of a

small animal

and one-half of a

large animal

.

For perhaps, had he shown the blemish to a Sage, the Sage would have said that it was not a permanent blemish. And perhaps the animal would never have developed a blemish. Therefore, because of the uncertainty, he pays half the value. [See Tosafot, s.v. Revi’a].

We inquire:

What is the reason

that he pays one-quarter for a small animal and one-half for a large animal?

Rav Pappa said: This,

in the case of a large animal, involves

a substantial loss. And this,

in the case of a small animal, involves

a minor loss,

as it is not worth much.

And we challenge this:

If so—

let him pay according to the loss!

In every case he should pay half: half of the greater amount in the one case, and half of the lesser amount in the other. Why, then, should he pay “one-quarter”?

Rav Huna bar Menoaḥ said in the name of Rav Aḥa bar Ika: They applied here the decree concerning those who raise small animals.

Since raising a small animal involves considerable effort, and this person, by permitting its slaughter, spared the priest that effort—for perhaps, had he shown it to a Sage, the Sage would not have permitted it, and the priest would have had to continue caring for it with great effort—therefore he pays only one-quarter.

Mishna:

A judge who

rendered a judgment

and erred, and

found the liable party innocent,

or

found the innocent party liable.

And likewise, a Sage whom people came to ask about pure substances, whether they were impure, and he

declared the pure impure,

or

declared the impure pure,

and afterward, following his ruling, they mixed the substances that had become impure with produce that was certainly pure—

What he did—

is done. And he shall pay

for what he caused them to lose

from his own resources.

But if

the judge who erred

was an expert for the court,

he is

exempt from paying.

For he acted according to the law in ruling as he did according to his understanding, unlike one who is not an expert, who should not have issued a ruling.

Gemara:

We inquire: Since it teaches, “And he shall pay from his own resources”—

shall we say that the anonymous Mishna is in accordance with Rabbi Meir, who rules that one is liable for indirect damage caused by his actions? "

Indirect causation of damage"—according to everyone, one is exempt from paying under human legal jurisdiction, but liable under the laws of Heaven.

One who causes damage through "gereme"—Rabbi Meir and the Sages disagree whether he is liable to pay. "Indirect causation of damage" is, for example, one who opens the gate of another's courtyard, thereby allowing his cow to escape. [Bava Kamma 25b].

"Gereme" is, for example, one who burns another's promissory note, thereby not destroying actual property. For the document is merely the basis for collecting the debt. [Bava Kamma 98b].

Regarding the fundamental difference between "indirect causation," for which everyone is exempt from paying, and "gereme," for which Rabbi Meir obligates him to pay, the Rishonim offered several explanations:

a. In the case of gereme, he causes the damage

with his own hands.

b. In the case of gereme, the damage occurs at the time of the action

immediately.

c. Some Rishonim maintain that the basis of the law of gereme is a penalty imposed by the Sages. Therefore, they imposed the penalty only in a usual and common case. [Tosafot, Bava Batra 22b].

Here, too, in the Mishna, in the case of a judge who erred and found the innocent party liable, he caused damage only through gereme, yet it teaches that he is liable to pay. If so, shall we say that the Mishna is in accordance with Rabbi Meir?

And we reject this:

Rav Ila'a said that Rav said:

The Mishna is speaking about one who caused damage with his own hands,

for example, where he physically transferred the money.

The judge took the money from the person whom he believed to be liable and gave it to the other party. Thus, he caused the damage with his own hands, and his liability is not based on the law of gereme.

And we challenge this:

Granted,

the case where it teaches

“he found the innocent party liable”

can be established

as a case where he physically transferred the money.

But

the case where it teaches

“he found the liable party innocent”—what are the circumstances?

For example, where he said to him, “You are exempt”

from paying.

But

in such a case

he did not physically transfer the money;

it was merely speech, and he did not actually cause damage, but only through gereme.

And we answer:

Ravina said:

The Mishna is speaking as follows:

The case of finding the liable party innocent is

for example, where the lender had

a

pledge belonging to the borrower

from which he could collect. After the judge ruled that the borrower was exempt from paying—“he found the liable party innocent”—he

took

the pledge

from him,

and this was an act performed with his own hands, not gereme.

“He declared the pure impure”

is speaking of a case

where the Sage touched

the produce with a

creeping animal

and rendered it impure.

“He declared the impure pure”

is speaking of a case

where he mixed it with his own produce.

Someone came to ask the Sage about produce, whether it was pure or not, and the Sage took the produce about which he had been asked and mixed it with produce that was certainly pure. Thus, he caused damage with his own hands by rendering his produce impure.

Mishna:

And there was an incident involving a cow whose womb

—the

birth canal—

had been removed. They asked Rabbi Tarfon whether it was a tereifa.

Rabbi Tarfon ruled that it was a tereifa.

Rabbi Tarfon fed it to the dogs.

The owners fed it to the dogs on the basis of his ruling.

And the incident came before the Sages

who

were in Yavne, and they permitted it.

The physician Theodosius said: No cow or sow leaves Alexandria in Egypt without its womb being cut out, so that it will not give birth.

They did this because the Egyptian cattle were superior to those of other places and were sold at a high price. To prevent them from conceiving outside their country, they removed their “wombs.” Although they did so, the cow remained alive. This proves that an animal does not become a tereifa when its “womb” is removed.

Rabbi Tarfon said:

“Tarfon, your donkey has gone!”

He said this about himself: because he had issued an incorrect ruling, his donkey had gone and been lost. He now had to pay the owners for the damage caused to them.

Rabbi Akiva said to him: Rabbi Tarfon, you are an expert for the court. And anyone who is an expert for the court is exempt from paying,

even if he erred.

Gemara:

And we challenge this: Why did Rabbi Akiva tell Rabbi Tarfon that he was exempt from paying because he was an expert?

But he could have derived it from the fact that he erred with regard to a matter of Mishna, and one who errs with regard to a matter of Mishna retracts

from his ruling.

Here, too, this was an error with regard to a matter of Mishna, since we learned in the Mishna in tractate Ḥullin: “If the womb was removed, it is kosher.”

Had the cow still existed, he could have retracted his ruling and declared it fit. Although the owners had already fed it to the dogs on the basis of Rabbi Tarfon's ruling, Rabbi Tarfon nevertheless cannot be obligated to pay on this account.

And we answer:

“One reason, and another,” he said to him.

He gave him an additional reason.

First, you erred with regard to a matter of Mishna.

Therefore, you can retract your ruling.

And furthermore, even if you erred in deciding the law according to your analysis

and cannot retract your ruling, you nevertheless do not have to pay, since

you are an expert for the court, and anyone who is an expert for the court

who errs is

exempt from paying.

Mishna:

A Sage who

takes payment to examine firstborn animals—

one may not slaughter

firstborn animals

on his instruction,

because we are concerned that, since he took payment, he may have permitted it.