Mishna Yomit Shabbat July 5 Bechorot BEKHOROT: CHAPTER 8: MISHNAH 3 If a mans wife had not before given birth and she bore two males, he gives five selas to the priest. If one of them died within thirty days, the father is exempt. If the father died and the sons live, R. Meir says, If they gave before dividing, they have given; but if not, they are exempt. R. Yehudah says, The property is liable. A male and a female, the priest receives nothing. Kehati Our mishnah deals with a doubtful bekhor who, according to the halakhah, need not be redeemed, since the burden of proof lies on the claimant (i.e., the priest) (Rambam Hil. Bikkurim 11:19). If a mans wife had not before given birth and she bore two males that became mixed up and it is not known which one is the bekhor, then since one of them is evidently a bekhor, he gives five selas to the priest. If one of them died within thirty days, in which case a bekhor does not require redemption (see mishnah 6 below), the father is exempt from redeeming since the dead infant may have been the bekhor, and the father can demand that the priest prove that the live one is the bekhor, since the burden of proof lies upon the claimant. By the same token the son is likewise exempt from redeeming himself. If the father died and the sons live - the Gemara inquires whether the death occurred within or after thirty days (after the sons birth). According to Rambam (Mishnah Commentary) and other mishnah commentators, the father died after thirty days. However, in his Code (Hil. Bikkurim 11:20) Rambam rules: If the father died, whether within or after thirty days... (see Kesef Mishnehs explanation of Rambams retraction); R. Meir says, If they gave the priest the five selas from the inheritance before dividing it between them, they have given as stipulated by the law, since the property is pledged to the debt (Gemara; Tosefot Yom Tov); but if they did not give him before dividing the inherited property between them, they are exempt from paying the redemption money after they have divided the inheritance; according to R. Meir, brothers who have divided inherited property are treated as purchasers who have bought their respective shares from one another, whereas the five selas the father owed the priest for his sons redemption are accounted a verbal loan, and as such cannot be collected from the purchasers (who bought the property). R. Yehudah says, The fathers property is liable for the five selas which the heirs must pay the priest from the inherited assets. According to Rambam and Bartenura, R. Yehudah regards brothers who have divided the inheritance as heirs whose property is pledged as a verbal loan. Other commentators base R. Yehudahs ruling on the principle that a loan stipulated by the Torah - e.g., the five selas due to the priest for the redemption of a bekhor - is accounted a documented loan, and as such may be collected from the purchasers (see Tosefot Yom Tov). However explained, R. Yehudahs ruling is followed by the halakhah, and the brothers - whether they did or did not divide the property - must pay the priest out of it five selas. If his wife bore a male and a female and it is not known which was born first, the priest receives nothing, since the female may have been born first, and the burden of proof lies on the claimant. BEKHOROT: CHAPTER 8: MISHNAH 4 If two women who had not before given birth bore two males, he must give ten selas to the priest. If one of them died within thirty days, if he gave to one priest he must give him back five selas. If he gave to two priests he cannot reclaim from them. A male and a female or two males and a female, he must give five selas to the priest. Two females and a male, or two males and two females, the priest receives nothing. If one had given birth before and one had not given birth before, and they bore two males, he must give five selas to the priest. If one died within thirty days, the father is exempt. If the father died and the sons live, R. Meir says, If they gave before dividing, they have given; if not, they are exempt. R. Yehudah says, The property is liable. A male and a female, the priest receives nothing. Kehati If two women - the wives of the same husband - who had not before given birth bore two males and they became mixed up, he must give ten selas to the priest, since each is a bekhor to his mother. If one of them died within thirty days and the father had already given the priest their redemption money, then if he gave the sum due for both to one priest, he - the priest - must give him back five selas, since the father need not redeem a bekhor who died within thirty days of his birth. If he gave to two priests - five selas to each, without specifying which bekhor he was paying for, and one of them died within thirty days - he cannot reclaim from them the redemption money, since each priest can claim to have received that due for the live one. If his two wives bore one a male and the other a female or two males and a female and they became mixed up, e.g., if they gave birth when hiding (Rashi), and it is not known what each one bore, he must give five selas to the priest, since one of them is definitely a bekhor; the other males birthright (if two males and a female were born) is in doubt, since one of the women may have given birth to two males; and if one of them gave birth to one male and the other to a male and a female, the latter may have been born first. If they gave birth to two females and a male, or two males and two females, and having become mixed up it is not known which was born first, the priest receives nothing, since the females may have been born first, in which case none of the males is a bekhor. If one of his wives had given birth before and one had not given birth before, and they bore two males which became mixed up, he must give five selas to the priest, since one of them is definitely a bekhor. If one died within thirty days and it is not known whose son it was, the father is exempt from the payment of five selas, since the one who died may have been the bekhor and this one does not require redemption. If the father died and the sons live and inherited their fathers property, R. Meir says, If they gave the priest the five selas from the inheritance before dividing the property between them, they have given - as stipulated by the law (see preceding mishnah); if they did not pay before dividing the inheritance, they are exempt from paying the priest the five selas (see preceding mishnah). R. Yehudah says, The fathers property is liable, i.e., became liable before his death for the five selas, and the sons - whether they did or did not divide the inheritance - must pay this amount from the inherited property (see preceding mishnah). If the two women - one of whom had and the other had not given birth before – bore a male and a female that became mixed up, and we cannot determine whether the woman who had not given birth before bore the male and he is a bekhor or the woman who had given birth before bore the male and he is not a bekhor, the priest receives nothing, since the father can say that the one who had not given birth before may have borne the female, in which case there is no bekhor; since there exists a doubt, the burden of proof lies on the claimant.
Posted on: Fri, 04 Jul 2014 06:09:34 +0000
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