Bechoros Chapter 2, Mishnah 6. This Mishnah opens a set of three Mishnayos dealing with situations of doubt - male animals that are doubtfully a bechor, and we must clarify whether their status is that of a bechor or not. The Mishnah is complex, and to understand it, two preliminary principles are required:
The monetary aspect: A monetary obligation rests upon the owner to give the bechor to a kohen. When this obligation is in doubt, the determining rule is "the burden of proof rests on the one seeking to extract from his fellow" - the burden of proof rests on the kohen claiming the bechor, and since he cannot prove his right due to the doubt, he is not entitled to receive it.
The aspect of prohibition and permission: Even when the kohen cannot claim the bechor, the question of the offspring's status remains. A doubtful bechor is forbidden from benefit: we may not work with it and we may not shear it, and eating it is permitted only after it develops a permanent blemish.
The first case - "rachel shelo bichrah veyaldah shenei zecharim":
The Mishnah opens with the basic case: "rachel shelo bichrah veyaldah shenei zecharim veyatze'u shenei rasheihen ke'echad" - a ewe that had not previously given birth and gave birth to two male lambs, and both their heads emerged at once. The emergence of the head determines the birthright, and here both heads emerged simultaneously.
Rabbi Yosi HaGelili says: "sheneihem lakohen" - both go to the kohen, meaning both are a bechor. He derives this from the verse: "And every firstling that is cast by a beast that you will have, the males shall be to Hashem" - the verse opens in the singular ("that you will have") and concludes in the plural ("the males"), teaching that it is possible for two offspring to emerge simultaneously and both belong to Hashem.
And the Sages say: "i efshar" - it is impossible. In their view, the derivation is not dealing with this, but was stated generally, that the Jewish people give many male bechoros. As for the matter itself: it is impossible for two animals to emerge at the exact same moment. This is the view of the Sages throughout the entire Torah, known as "it is impossible to be perfectly precise" - before Heaven everything is known, and there is no reality where two things occur at the exact same moment; rather, one preceded its fellow by a hairsbreadth, and it is only flesh and blood that cannot determine this.
Therefore, there are never two definite bechoros here, but rather a doubt: one of the two is a bechor and it is unknown which. One belongs to the owner and one to the kohen. How is this applied in practice? There are two approaches to the matter:
Rabbi Tarfon: The kohen comes and takes the finest and most valuable of the two, and this animal is considered in his hand a definite bechor and not a doubt, and everyone treats it with certainty. The reason: we can safely assume that the stronger of the two offspring is the one that forced its way and emerged first from the womb.
Rabbi Akiva: This is not so; rather it is a doubt and we do not know who the bechor is. Therefore, the rule applies that "the burden of proof rests on the one seeking to extract from his fellow", and the kohen is entitled only to the lesser of the two, for regarding the more valuable one he must prove his right.
To illustrate matters in terms of value: suppose one animal is worth three dollars and the second four. The kohen takes the one of three, and the dispute remains only over the fourth dollar - the additional value in the larger animal. Everyone agrees that at least three go to the kohen, while the fourth remains in the hands of the owner.
However, the owner cannot be certain that the one remaining in his hand is specifically the one that is not a bechor, and therefore he must be very careful - lest it is a bechor. He lets it graze until it develops a permanent blemish, and only then is he permitted to eat it. The same law applies to the animal the kohen took: he does not sacrifice it, lest it is not a bechor, and he does not eat it without sacrificing it, lest it is a bechor - it too waits until it develops a blemish, and only then is it eaten.
Gifts of the priesthood in the animal that remains in the hands of the owner:
A separate question arises regarding the owner: what is the law of the other gifts of the priesthood that apply to every chullin (non-sacred) animal? One who slaughters a chullin animal - a cow, goat or sheep - in order to eat its meat, is obligated to give the kohen three gifts:
"Zeroa" - the right foreleg of the animal.
"Lechayayim" - the tongue and the cheeks around the mouth.
"Keivah" - one of the four stomachs of ruminants (cow, goat, and sheep), the one used for making cheese.
Rabbi Akiva says: "Vechayav bematanos" - when the owner eventually slaughters the animal remaining in his possession, after it develops a blemish, he will have to give its zeroa, lechayayim, and keivah to a kohen. The reason: it is money whose status is in doubt, and from every angle the gifts belong to the kohen - if this is not a bechor, it is chullin which requires giving the gifts; and if it is a bechor, the kohen has a claim to all of it, and all the more so the zeroa, lechayayim, and keivah are his.
And Rabbi Yosi "poter" - exempts: The owner who kept for himself the more valuable of the two, and after it developed a blemish slaughtered and ate it, is permitted to keep for himself even the zeroa, lechayayim, and keivah and eat them. The basis for this is not logic but a rabbinic law: The Sages viewed the division of the two animals between the owner and the kohen as a sort of exchange - as if the kohen said to the owner: Any right I have in the second one I transfer to you, and I remove my claim from it. It turns out that each one received his fully according to law and halachah. There is no great compulsion for this, but this is what Chazal established, and this approach is consistent with Rabbi Yosi's opinion in a variety of scenarios.
An additional reason is stated for the opinion of Rabbi Yosi: a concern that if they take a zeroa, lechayayim, and keivah from this animal, people will conclude that it is not a bechor, and as a result they will come to permit shearing it and working with it. To prevent any confusion, no gifts are given from it at all.
The halachah follows Rabbi Akiva: The gifts are given to the kohen, and the owner keeps the more valuable of the two based on the rule that the burden of proof rests on the claimant.
"Meis echad meihen":
The Mishnah continues and discusses a case in which one of the sheep died before the kohen took his portion. In this situation we do not know which of the two sheep belongs to the kohen, at least according to the opinion of Rabbi Akiva. Rabbi Tarfon says: "Yachaloku" - they divide: only one live sheep remains, and the owner and the kohen divide its value equally.
Two questions arise here. First, Rabbi Tarfon is the one who just said that the kohen takes the better of the two and its status is certainly a bechor, and there is no doubt here at all; if so, why do they divide it? According to his opinion, he should have said: If the dead one is the large one, it is the animal of the kohen that died; and if the dead one is the small one, the one that is not a bechor died, and the kohen takes the remaining one. And second, the halachah was essentially decided according to Rabbi Tarfon.
The explanation: Rabbi Tarfon retracted his opinion. Chronologically, this happened later, and at this stage of the Mishnah he is saying that he made a mistake - the kohen cannot take the more valuable of the two, since it is a doubt. His first opinion is no more, and the Mishnah left it in place because it had already been taught and reviewed by the students, and they did not want to remove it from their study.
And it is still difficult: If it is a doubt, why should they divide it? He should have said, "The burden of proof rests on the claimant" - we do not know if the surviving animal is the bechor belonging to the kohen, and therefore the kohen should not take anything. And this is indeed what Rabbi Akiva says: "Hamoitzi meichaveiro alav haraayah" - the burden of proof rests on the claimant, and the kohen takes nothing.
Rather, Rabbi Tarfon's reason for the division stems from a completely tangential reason. The Gemara establishes the Mishnah in an unusual specific scenario (and we will not elaborate on its details, so as not to get complicated): It is speaking of an owner who brought a shepherd to care for his flock, and the shepherd is a kohen. The owner granted the kohen shepherd certain rights in the flock, and because of this he has a share in the animal and they divide it equally. And Rabbi Akiva holds that the owner would not have granted the shepherd any share; and even though he is a kohen, he has no special right in the animal, and his status is like any claimant - "the burden of proof rests on the claimant," and he takes nothing.
The Third Case - A Male and a Female:
The Mishnah introduces a new case here: a ewe giving birth for the first time that bore twins, and the next morning the owner finds a male and a female in the pen. What does the kohen take? The Mishnah says: "Ein kan l'kohen klum" - the kohen takes nothing, as perhaps the female emerged first, and if so, there is no bechor here at all.
Meanwhile, the owner does not know whether the male is a bechor or not, and so he is left with a doubt: the female is permitted without any restriction, while the male is a doubtful bechor - it is forbidden to be sheared or worked. He leaves it to graze until it develops a permanent blemish, and only then will he be allowed to eat it as a doubtful bechor.
In summary: In this Mishnah we learned the two principles regarding the law of a doubtful bechor - the monetary aspect, where the rule "the burden of proof is on the one seeking to extract from his fellow" applies, and the aspect of prohibition and permission, where the offspring remains forbidden to be sheared or worked until it develops a blemish. We discussed the dispute between Rabbi Yosi HaGelili and the Sages regarding two heads that emerged simultaneously and the principle that "it is impossible to be exact"; the dispute between Rabbi Tarfon and Rabbi Akiva regarding the division of the two animals; the dispute between Rabbi Akiva and Rabbi Yosi regarding the obligation of the priestly gifts, where the halachah follows Rabbi Akiva; the law when one of them dies and the retraction of Rabbi Tarfon; and finally, the case of a male and a female, where the kohen receives nothing.
In the following mishnayos, we will continue to discuss other cases of doubt regarding a bechor.