Bechor and Safek Kohen

Yevamot (11:5) | Yisrael Bankier | a year ago

The Mishnah (11:5) discusses a case where the baby boys of a kohenet and shifcha got mixed up. The Mishnah deals with what can be done in that situation and how to treat these individuals going forward. One issue is that each of the people could be the kohen and there are stringencies and leniencies as a result. One of these laws relates to the bechor. A bechor refers to a first-born kosher animal. During the times of the Beit HaMikdash the animal would be taken to the Beit HaMikdash, offered as a korban and parts of the korban consumed by the kohanim. If however the animal developed a mum (a blemish that invalidated it from being offered as a korban) then the animal was be given to a kohen who would only be able to slaughter it for consumption. The Mishnah teaches that the individual in this Mishnah would be able to hold onto the bechor until it developed a mum and then keep it. We shall try to understand this Mishnah.

It is clear that once it develops a mum, they could keep the bechor since from that point onward it is a monetary question. To force them to hand over the bechor, we would need to prove that they are not the kohen, which we cannot do.

One might be tempted to understand that our Mishnah is referring to a time when there is no Beit HaMikdash. In other words, there is no issue in waiting for the animal to develop a mum since that animal cannot be offered as a korban.

The Tosfot Yom Tov however explains that the Mishnah applies also during the time of the Beit HaMikdash. He explains that once the korban is offered, it is enjoyed only by kohanim and since this individual cannot prove that he is a kohen, he would lose out if it were offered. Rashi also understands that the Mishnah is also referring to during the times of the Beit HaMidkash.

The Tosfot R' Akiva Eiger provides two difficulties with this explanation. Firstly, he cites the Gemara (Temura 8a) that prior to the bechor developing a mum, the kohanim have no share in the animal. It is only once the sacrificial parts of the korban have been offered that they merit to take a share ("zoche ba'baser meshulchan gavoah"). That being the case, the gizbar (treasurer of the Beit HaMikdash) should be able to take the bechor even if he cannot prove that the individual is not a kohen. It is for that reason that the Gemara concluded that our Mishnah is referring to nowadays instead. Secondly, he cites the Korban Ha'Eidah who finds Rashi difficult, noting that when waiting for the mum to develop, one might violate the prohibition of baal te'acher. That being the case it is difficult to understand how we would allow the violation of baal te'acher based on a doubt whether the individual is a kohen.

The Tifferet Yisrael applies the Korban Ha'Eidah's question to the Gemara in Temura. The basis of the question there was that the kohen does not have a share in the bechor prior to it being offered. This implies that if he had a share in the bechor he could retain the animal until it develops a mum. That conclusion is difficult to accept considering it would involve the violation of baal te'acher while waiting for it to develop a mum.¹

The Aruch LaNer offers two possible answers for the Korban HaEidah's question. The first is that perhaps he can delay, assuming that the mum will developer before the regalim have passed, prior to ba'al te'acher being transgress. He however admits that that suggestion is forced. Alternatively, he answers based on the Rambam (Rosh Hashanah 6:2) that if one inherits a korban and delays in offering it, he does not violate baal te'acher. He continues that it is clear in the Mishnah that these two people would share in the inheritance from both fathers. The Mishnah is therefore referring to a bechor that one of the boys inherited. They would not violate the prohibition of ba'al te'acher and Beit Din could therefore not force them to bring the korban, due to the loss that the Tosfot Yom Tov described above.

¹ The Tifferet Yisrael raises another possibility, that the Mishnah is referring to during the time of the Beit HaMikdash, but the animal is outside Eretz Yisrael and therefore cannot be offered as a korban. The Tifferet Yisrael however ejects this possibility since the assumption is that the Tana of the Mishnah is situated in and discussion laws of Eretz Yisrael.

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