Bekhorot 57a (נז.) — the Talmud in English

And Rabbi Yoḥanan follows his own reasoning:

Rabbi Yoḥanan follows his own view, as he said elsewhere: “There is no retroactive designation”:

As Rabbi Asi said in the name of Rabbi Yoḥanan: Brothers who divided an inheritance are purchasers,

as each one took his fellow’s share of the inheritance,

and they return the portions to one another in the Jubilee year,

like any other sale; and we do not say that there is retroactive designation, claiming that this was the portion due to him from the outset.

And it is necessary

to state both of these teachings:

For if he had taught us

only

here—

with regard to animal tithe, where in every manner of division they are exempt from animal tithe because they are considered purchasers—we might have said:

In this case

specifically

did Rabbi Yoḥanan say

that they are considered purchasers, not because there is no retroactive designation. Rather, even if there is retroactive designation, they are nevertheless exempt, because the animal subject to animal tithe must be

similar to your son,

and

just as your son is clearly identifiable to you, so too your ox and your sheep must be clearly identifiable to you.

But

with regard to the division of a

field

and concerning the Jubilee year, it is said:

It is a sale that the Merciful One said must be returned in the Jubilee year; an inheritance and a gift need not be returned,

and since we say that there is retroactive designation, it is not a sale but an inheritance.

And if he had taught us about a field,

we might have said that only there do we say that there is no retroactive designation, since it is

stringent

to say that they must return the portions in the Jubilee year; Rabbi Yoḥanan was not certain that there is no retroactive designation, and therefore ruled stringently, out of doubt, that they must return them in the Jubilee year—

Alternatively,

Rabbi Yoḥanan did not say that they should return the portions to one another in the Jubilee year because there is no retroactive designation. Rather, they should return them so that the field will be

as it was initially,

meaning that just as initially it was undivided and belonged to one person, so in the Jubilee year it will again belong to one person.

But here,

with regard to animal tithe, if we say that there is no retroactive designation, we are lenient and exempt them from animal tithe;

one might say that this is not so,

that we should not say this—

Therefore,

it is necessary

to state both teachings.

The Gemara raises an objection

to the one who says: “There is retroactive designation”:

And similarly, partners who divided their animals, one took ten,

kids,

and one took

in exchange for them

nine

kids

and a dog,

with the result that one of the kids taken by the owner of the ten was equal in value to the dog that he gave his partner. Therefore, all the kids

that correspond to the dog,

that is, all the kids taken by the owner of the ten, are

forbidden

to be offered on the altar because of the prohibition of “the price of a dog,” as it is an abomination of the Lord to offer it on the altar.

And those kids

that are with the dog,

that is, the kids taken by the owner of the nine together with the dog, are

permitted.

And now we ask:

And if you say

“There is retroactive designation,”

let him designate one of them as corresponding to the dog and take it, and let the others be permitted [

he should take one of the ten and designate it as the one received in exchange for the dog, and the rest should become permitted]!?

b. Tosafot answered their question here: Since there is retroactive designation, and the matter can depend on his intention, presumably his intention from the outset was that whichever animal he would designate would correspond to the dog. But Tosafot in Temura 30a [in response to the Gemara’s question there, which is similar to our passage] did not adopt this as the reason for retroactive designation. See there, where they asked: It is difficult, for here it appears that if a forbidden item is mixed with permitted items, one takes the forbidden item and relies on retroactive designation, saying that this is the forbidden item that has been removed. If so, with regard to every forbidden item mixed with permitted items, let us rely on retroactive designation, take an amount equal to the forbidden item, and let the remainder be permitted!? And my master, Rabbi Meir Raphael Rozovsky, stated a major principle concerning this law: Certainly, whenever the forbidden item was identified initially and afterward became mixed with permitted items, we do not rely on retroactive designation, since it was mixed while forbidden. But in these mixtures, the mixture occurred while permitted, because the forbidden status had not been identified before the mixture; only after the mixture did the prohibition arise. In that case, we rely on retroactive designation. See further in Tosafot of Sota 18a, s.v. Ḥazar. c. Rabbi Akiva Eiger wrote in Ma’arakhah 6 and see also in “Ein HaGilyon” —in the Talman edition—on the Shulḥan Arukh, OḤ 448: Apparently, according to the aforementioned words of Tosafot in Temura, a new law emerges: According to the one who says that there is retroactive designation, if leaven became mixed with dry, non-leavened items before Pesaḥ, it is possible to designate one of them, remove it, and say that this is the forbidden item, since when Pesaḥ arrives the prohibition will arise in the mixture. Rav Ashi said,

in response:

If they were all equal in value to one another, so too [

if the value of each kid and the value of the dog were equal, it would indeed be possible to say that there is retroactive designation and to identify one kid as the price of the dog]. However,

with what are we dealing here:

With a case

where they were not all equal in value to one another [

their values were not all equal], and the kids of the owner of the ten were worth more than the kids of the owner of the nine,

and this dog was worth one and a fraction [

the value of the dog was equal to the value of one kid and a fraction of one of the kids belonging to the owner of the ten].

And this fraction runs through and is present in all of them [

this fraction is found in all the kids corresponding to it], and therefore it is no longer possible to take one kid and say: This is the price of the dog.

Mishna:

All animals enter the pen to be tithed, except for mixed species,

such as when a he-goat mated with a ewe and she gave birth,

a tereifa, an animal born by caesarean section [

which did not emerge in the usual manner through the womb],

one whose time has not yet arrived [

before the eighth day after its birth],

and an orphan

from its mother, as the Gemara will explain the reason for all of these.

And what is an orphan? Any animal whose mother died or was slaughtered, and afterward she gave birth.

b. In Ḥullin 74b Tosafot, s.v. Degamar, explains that a fetus found in a slaughtered animal cannot be used to redeem a firstborn donkey, because a fetus found in a slaughtered animal is considered slaughtered, and redemption may not be performed with a slaughtered animal. Minḥat Ḥinukh wrote [mitzva 22] that according to Tosafot’s method, a fetus found in a slaughtered animal is not tithed, since a slaughtered animal is not subject to tithing. And even according to the one who says that a firstborn donkey may be redeemed with a fetus found in a slaughtered animal, it is nevertheless not tithed; so it appears to me. [This requires examination: If so, in the case where its mother was slaughtered, why is the reason “orphan” necessary? It should follow simply because it is a fetus found in a slaughtered animal, and redemption may not be performed with a slaughtered animal. This difficulty is all the more acute according to Rabbi Yehoshua, who declares it fit when the hide remains intact.] Rabbi Yehoshua says: Even if its mother was slaughtered, and the hide

[the skin] of the mother was still

present

at the time her offspring was born,

this is not an orphan.

Gemara:

We learned in the Mishna: All animals enter the pen to be tithed, except for mixed species, a tereifa, an animal born by caesarean section, one whose time has not yet arrived, and an orphan:

The Gemara asks:

From where are these matters derived?

And it explains:

The Sages taught:

With regard to other consecrated animals, it is written: “An ox, or a sheep, or a goat, when it is born, shall be seven days under its mother; and from the eighth day onward it will be accepted as an offering, a fire-offering to the Lord”:

And we derive: From the fact that Scripture says

“an ox or a sheep”

and not “an ox and a sheep,” we learn:

to exclude mixed species

which is like two species combined, and is unfit as a fire-offering to the Lord.

And from the fact that Scripture says:

“or a goat”

and not “a sheep and a goat,” we learn:

to exclude an animal resembling another species,

whose mother is a ewe but which resembles a goat. “

When it is born”

to exclude an animal born by caesarean section. “

And it shall be seven days

under its mother, and from the eighth day onward it will be accepted”:

to exclude one whose time has not yet arrived. “

Under its mother”

to exclude an orphan,

which is not under its mother, because she has already died.

Rabbi Yishmael, son of Rabbi Yohanan ben Beroka, says: It is stated here

in the context of animal tithe, “Everything that passes

under the staff,”

and it is stated there

in the verse mentioned above,

“under its mother,”

to teach us:

Just as there, this excludes all of these designations,

as explained,

so too here,

in the context of animal tithe,

this excludes all of these designations.

We likewise derive from animal tithe concerning the other sacrificial offerings by means of this gezeira shava:

Just as here,

in the context of animal tithe,

this excludes a tereifa,

so too there,

with regard to the other sacrificial offerings,

this excludes a tereifa.

The Gemara asks: With regard to what we learned in our Mishna,

“Everything

enters the pen to be tithed,”

what does this come to include?

What is the phrase “everything” intended to include?

And we explain:

It comes to include that which the Sages taught:

An animal that engaged in bestiality

[an animal that copulated with a human being]

and an animal with which bestiality was performed

by a human being,

and an animal designated

[that was set aside to be sacrificed for idolatry],

and an animal that was worshipped

[one who worshipped the animal itself, for example, by pouring wine between its horns],

and the payment to a prostitute

of a prostitute,

and the exchange

of a dog,

and a tumtum and an androgynos,

all of which are disqualified as sacrificial offerings, but nevertheless

all of them enter the pen to be tithed.

Rabbi Shimon ben Yehuda says in the name of Rabbi Shimon: A tumtum and an androgynos do not enter the pen to be tithed.

And we challenge this:

But the tanna of our Mishna—

the tanna of our Mishna, who disqualified all those mentioned in the Mishna from entering the pen, yet included those mentioned in the baraita as entering it to be tithed—what does he hold?

If he derives

“under” “under”

from sacrificial offerings,

then

these

—those mentioned in the baraita—

should also not

enter the pen to be tithed.

And if he does not derive “under” “under,” then

these

—those mentioned in the Mishna—

from where does he know

that they do not enter the pen to be tithed!? And we answer:

Actually, he does derive

the phrase “under” “under,” and therefore he disqualified all those mentioned in the Mishna.

And these

—those mentioned in the baraita—

the Torah included them

[the Torah included them, as the Gemara proceeds to explain: The Torah compared the animal that engaged in bestiality, the animal with which bestiality was performed, and the payment to a prostitute, as well as the designated and worshipped animals, to an animal with a permanent blemish. Just as an animal with a permanent blemish is liable for animal tithe and is eaten by its owners, so too these animals, although unfit for sacrifice, are nevertheless liable for animal tithe and are eaten by their owners with their blemishes].

For it is written

with regard to offerings with permanent blemishes [Leviticus 22]:

“For their corruption is in them; there is a blemish in them; they shall not be accepted on your behalf.”

And the school of Rabbi Yishmael taught:

Every place where the term corruption is stated—

as, for example, here, where it is written “their corruption”—

refers only to sexual transgression and idolatry.

And from where do we know this?

Sexual transgression, for

this

is written concerning the generation of the Flood [Genesis 6]:

about the generation of the Flood [Genesis 6]:

“For all flesh had corrupted its way upon the earth.”

Idolatry, for

this

is written [Deuteronomy 4]:

[Deuteronomy 4]:

“Lest you corrupt yourselves and make for yourselves a graven image, the likeness of any figure, the form of male or female”—

And

if so, the verse compared these to animals with permanent blemishes, to teach you:

Everything

with regard to which a blemish renders it unfit,

also

sexual transgression

[the Gemara proceeds to explain what constitutes sexual transgression in an animal]

and idolatry

[it proceeds to explain this as well]

render it unfit; and with regard to anything concerning which a blemish does not render it unfit, sexual transgression and idolatry do not render it unfit—

And this animal tithe,

with regard to animals,

since a blemish does not render it unfit

but it is tithed and eaten by its owners,

as it is written

[Leviticus 27] concerning animal tithe:

“He shall not inspect whether it is good or bad”

[whether it is unblemished or blemished]

“and he shall not exchange it,”

also

sexual transgression and idolatry likewise do not render it unfit.

And if so, we have learned that all those mentioned in the baraita are liable for animal tithe, for:

The animal that engaged in bestiality and the animal with which bestiality was performed are sexual transgressions,

and they were compared to an animal with a permanent blemish, making them liable for the tithe.

The designated and worshipped animals are idolatry,

and they were compared to an animal with a permanent blemish, making them liable for the tithe.

And the payment to a prostitute

is also

a sexual transgression,

and it was compared to an animal with a permanent blemish.

And the exchange

of a dog is liable for animal tithe, because

it was compared to the payment to a prostitute,

and the payment to a prostitute is liable for the tithe by virtue of its comparison to an animal with a permanent blemish.

A tumtum and an androgynos

are also liable for animal tithe, because

the tanna of our Mishna holds

that

it is a case of uncertainty,

and not an independent species; therefore, it is either male or female, and in either event it is liable for the tithe.

Thus, we have learned that all those mentioned in the baraita are liable for animal tithe.

The Gemara adds an explanation of the reasoning of Rabbi Shimon in the baraita, who exempts a tumtum and an androgynos from animal tithe:

Rabbi Shimon ben Yehuda says

in the name of Rabbi Shimon: A tumtum and an androgynos do not enter the pen to be tithed, because

he holds that they are not

a case of uncertainty;

both a tumtum and an androgynos are independent species—

And if so, they are not liable for animal tithe, since

the Torah excluded them with regard to sacrificial offerings,

for it is required that there be

a definite male

and a definite female,

as it is stated: “an unblemished male” and “an unblemished female,”

but not a tumtum or an androgynos;

and

the tithe likewise derives

“under” “under”

from sacrificial offerings.

The Sages taught:

Everything enters the pen to be tithed, except for a crossbreed and a tereifa; this is the statement of Rabbi

Abba bar Yehuda of Kefar Bartota, who said

this law

in the name of Rabbi Yehoshua.

Rabbi Akiva said: I heard from him

[from Rabbi Yehoshua]:

Even an animal born by caesarean section, an animal before its time, and an orphan

do not enter the pen to be tithed, as is also explained in our Mishna.

And

we challenge

the First Tanna: If he derives

“under” “under”

from sacrificial offerings,

then also

these—

an animal born by caesarean section, an animal before its time, and an orphan—

should also not

be tithed, since they are disqualified with regard to sacrificial offerings—

And if he does not derive

the gezeira shava “under” “under,” then the following difficulty arises:

Granted, with regard to a tereifa,

which, according to the First Tanna, does not enter the pen to be tithed, this is well understood, because

“Everything that passes under the staff”

is written,

and we learned:

this excludes a tereifa, which cannot pass.

But a crossbreed—

which is not tithed—

from where does he know

this, according to the First Tanna? Although it is disqualified with regard to sacrificial offerings, the First Tanna does not derive “under” “under”!?

And we answer:

Actually, the First Tanna derives

“under” “under,” and as for the difficulty you raised—that an animal born by caesarean section, an animal before its time, and an orphan should likewise not enter the pen to be tithed—he will say to you: