Bechoros Chapter 2, Mishnah 7. We continue to deal with situations of doubt regarding uncertain firstborns. The rules that apply in this Mishnah are mostly the same rules that were taught in the previous Mishnah, and in fact, the Mishnah repeats the main points of its laws. You might wonder why these things are repeated twice - and actually three times, and this is the second of them.
"Shtei rechalos shelo bikru" - two ewes that had not previously given birth:
The scenario before us: two sheep giving birth for the first time. The owner returns to the pen in the morning and finds offspring in it, and he must clarify the law of the firstborn. These are the situations:
"Veyaldu shenei zecharim" - and they gave birth to two males: two male lambs were found in the pen. Although it is not known which lamb belongs to which mother, it is clear that both were born first and both are firstborns, and therefore "nosnin sheneihem lakohen" - they give both of them to the kohen. There is no great novelty here.
A male and a female - one male and one female were found in the pen. The male is definitely a firstborn and the female is not a firstborn, and therefore the male is given to the kohen and the female remains with the owner.
Two males and a female:
The two first-time mother sheep gave birth to three offspring: two males and one female. Since there are two males here, one of them is necessarily a firstborn. The second male is a twin, and it is not known if he was born first or perhaps his sister preceded him and he was born second. It turns out that we have only one certain firstborn before us, and it is not even known which of the two males is the firstborn. Therefore we learned: "Echad lo ve'echad lakohen" - one is for him and one is for the kohen: the kohen takes one of the two, and due to the doubt, by virtue of the rule that "the burden of proof is on the one seeking to exact property from his fellow," the second remains in the owner's possession.
Which of the two is given to the kohen?
Rabbi Tarfon says: "Hakohen borer lo es hayafah" - the kohen selects the finer one for himself: the kohen takes the stronger and finer of the two. The logic here is a version of the logic in the previous Mishnah: an offspring that was a twin was forced to share resources in the womb, and presumably its development is lesser; whereas an offspring that was single in the womb is stronger. Therefore we can assume with certainty that the stronger and more valuable of the two males is the one that was not a twin.
Rabbi Akiva disagrees and says that there is never a possibility to know, and therefore "meshamnin beineihen" - they compromise between them. This is nothing but a question of doubt: one of them belongs to the kohen and it is not known which. If one is worth three and the second is worth four, the dispute is about the additional 'fat' in the one that is worth four. Therefore the kohen takes the one with the lower value, from the law of "the burden of proof is on the one seeking to exact property from his fellow" - he deserves three at the very least, and the one worth four remains with the owner.
The kohen must treat his as a doubtful firstborn: he is not permitted to eat it until it develops a blemish, and he is also not permitted to offer it as a firstborn, lest it is not a firstborn. Similarly, the animal that remains in the owner's possession grazes until it develops a blemish, and then the owner is permitted to slaughter it and eat it. When he slaughters it, he is obligated to give the gifts to the kohen, since either way they belong to the kohen: if this is not a firstborn but a chullin animal, he is obligated to give three gifts to the kohen; and if it is a firstborn, it all belongs to the kohen. Therefore, the kohen is entitled to the gifts at the very least.
Rabbi Yosi says that this is not so, and the owner is exempt from giving the gifts, because in his opinion, at the time they divided the animals between them, the kohen performed a complete transfer of all his rights, in the way a barter transaction is done. They acquire from one another, and the kohen no longer has any residual claim on the animal that remained with the owner - based on the same logic that was explained above.
If one of them died:
If one of the males died before the kohen had time to select his own, Rabbi Tarfon says that one animal remains here and "yachaloku" - they divide: the owner and the kohen divide its value. Here, as in the previous Mishnah, a question arises: Rabbi Tarfon is the one who holds that the situation is certain, and if so, he should have ruled that the animal definitely goes to the kohen or that it does not go to him at all. And even if we say that he holds it is a doubt - why should they divide? We should have said "the burden of proof is on the one seeking to exact property from his fellow," as Rabbi Akiva indeed says.
Rather, just as in the previous mishnah, we are dealing with that same specific scenario where an Israelite owner hired a kohen shepherd, waived certain rights in his favor, and granted him partial ownership. In this scenario, according to Rabbi Tarfon, they divide the value of the questionable bechor. Rabbi Akiva holds that this is nothing more than a standard case of doubt, and the burden of proof is on the one seeking to exact payment: the kohen takes nothing, and the owner treats the animal according to the laws of a questionable bechor.
"Shtei nekeivos vezachar" - Two females and a male:
Finally, we learned: If there were two mothers giving birth for the first time, and two females and one male or two males were found in the pen - it is entirely possible that the two firstborns of the two mothers were the two females. It makes no difference whether one male or two were found, because there is no proof at all that one of them is a bechor, and therefore the kohen takes nothing. The owner does not know whether the males were born first or second, and therefore he must treat them according to the laws of a questionable bechor: the prohibitions against shearing and working apply to them, and he is not permitted to work them or shear them. Once they develop a permanent blemish, the owner is permitted to slaughter and eat them, and according to halachah, he must give the kohen the priestly gifts: the foreleg, the jaw, and the maw.