In the previous chapters we learned that there are animals whose status as consecrated, as a sacrifice, is drawn from another animal. The central case is temurah, which draws its status from the animal from which the sanctity was transferred. We also mentioned the offspring of a sacrifice, whose status follows that of its mother. In our mishnah - Temurah, chapter 5, mishnah 1 - we will look more closely at how this works.
This mishnah is exceedingly difficult. We will follow the plain reading of the Bartenura and stay with it alone, even though there are other approaches among the Rishonim and even in the Gemara. According to the Bartenura, the mishnah contains two separate cases that have nothing to do with one another, even though there is no indication in the mishnah of the transition from one to the other. We will discuss each of them separately.
The first case: outmaneuvering the bechor:
The mishnah is dealing with a cow, a goat or a sheep that is a female that has never given birth. In Maseches Bechoros we learned that the first issue of the womb, the first offspring born to her, if it is a male, has the status of a bechor and is given to a kohen. The kohen offers it as a sacrifice and eats it if it is unblemished; and if it is blemished, he slaughters it and eats it without offering it at all.
It turns out, then, that the bechor is a pure financial loss for the owner of the animal: once a firstborn male is born to him - a calf, a kid or a lamb - he hands it over to the kohen and receives nothing in return. The mishnah therefore opens by asking: "Keitzad ma'arimin al habechor" - how can one act shrewdly with regard to the bechor, in a way that allows the owner to derive some financial benefit from it?
These are the words of the mishnah: "Mavkeres shehaysah me'uberes, omer: mah shebime'eha shel zo, im zachar - olah" - about an animal that has never given birth and is now pregnant, the owner declares regarding the fetus in her womb that if it is a male, it is consecrated from now - while still in its mother's womb - to be an olah offering. And then: "Yaldah zachar - yikrav olah" - if she gave birth to a male, it may be offered as an olah instead of being a bechor.
What is the benefit in this for the owner of the animal? Suppose that he needs to bring an olah from time to time - whether he obligated himself in a voluntary olah, or he brings olos re'iyah on the three festivals, on Pesach, Shavuos and Sukkos, when he goes up to Yerushalayim. In such a case he saves the expense of purchasing a separate olah, and uses for this purpose the firstborn of his own animal, by having declared it an olah while it was still a fetus in its mother's womb. This is the maneuver: a device that bypasses the obligation to give the bechor to the kohen, and puts it to use for the owner's own needs.
The mishnah specifically speaks of an olah because an olah is a male animal, and the bechor too is male. Seemingly one could consecrate it in the same way as a shelamim, which can also be male, but the mishnah did not say this because doing so is forbidden by rabbinic decree. For in a certain sense the bechor is holier than an ordinary shelamim, since it is eaten by kohanim alone while the shelamim is eaten by anyone. The Sages therefore decreed that one may not consecrate an animal in its mother's womb as a shelamim in order to bypass its being a bechor. But an olah, which goes up entirely to the altar, is permitted.
The second case: the offspring of a chatas:
In the second half of the mishnah, even though there is no indication of any transition, according to the Bartenura an entirely new case is being discussed: a female animal - a cow, a goat or a sheep - that was consecrated as a chatas and is pregnant. In the previous chapter we learned the law of the offspring of a chatas: it is one of the five chataos that are put to death, and it is left until it dies. Our mishnah teaches a way to bypass this and to save the unborn offspring from this fate - by consecrating it while it is still in the womb.
By way of introduction: the Tannaim disagree as to when the fetus receives its status from its mother:
The view of the Sages (and this is the halachah): automatically, already from the moment it is formed in the womb, it is part of the mother and receives her status.
The view of Rabban Shimon ben Gamliel: the fetus does not receive its status until it emerges into the air of the world, and only once the offspring is born does it receive its status, whatever that may be. We will see his view explicitly in the next mishnah. According to this approach one can consecrate the offspring while it is still in the womb, and the status of that consecration takes effect upon it rather than necessarily the status of the mother.
Therefore, in the case of the sin offering: if one consecrates the offspring while it is still a fetus in its mother's womb, the mother can be a sin offering while the offspring in her womb becomes an olah or a shelamim. Our Mishnah thus follows the view of Rabban Shimon ben Gamliel, who holds that the offspring does not take on its mother's status until it is actually born.
It is worth comparing the two cases: in the first case, that of the firstborn, there is no need to invoke this dispute at all, since according to all opinions the status of a firstborn takes effect only at the actual birth. For example:
Twins in the womb - there is no way to know which of them is the firstborn until one of them actually opens the womb and emerges first.
A single offspring that emerged through the wall of the womb, by caesarean section - is not a firstborn at all.
With regard to other animals, however, the Tannaim disagree, and the Tanna of our Mishnah follows the view that the offspring takes on its mother's status only once it is actually born, and therefore one can assign it a status beforehand. And in the context of a sin offering, says the Bartenura, if you wish to save the offspring from becoming one of the sin offerings that are left to die - you are permitted to do so.
In the words of the Mishnah: "Ve'im nekevah - zivchei shelamim" - if a person declares regarding his pregnant sin offering that what is in her womb, if it is a female, shall be consecrated as a peace offering; "Yaldah nekevah - tikrav shelamim" - and if it indeed turns out that the offspring is a female, it can be brought as a peace offering and not as a sin offering. In other words, this works because the mother's status as a sin offering does not take effect on the offspring until it is born.
Why specifically a peace offering here? True, a peace offering can be either male or female, but in the first case we learned that one may not turn the firstborn into a peace offering, only into an olah, because that would be a kind of demotion. And here too, the sin offering is among the offerings of the highest sanctity while the peace offering is of lesser sanctity - and nevertheless we are lenient, because the alternative is that the animal will simply stand there until it dies. Better that it go up on the altar and become an offering than that it be placed in a room to die, and therefore it is permitted.
The Mishnah further states that if the owner of the sin offering declares while she is pregnant: "Im zachar - olah, ve'im nekevah - zivchei shelamim" - that is, whatever is in the womb, if it is a male it shall be an olah and if it is a female it shall be a peace offering - this declaration too is valid. And even "yaldah zachar u'nekevah", that she gave birth to twin offspring, one male and one female - "hazachar yikrav olah", and not as a sin offering, exactly as he declared, "vehanekevah tikrav shelamim".
Here too we have no uncertainties. We assume that since he said "if a male - an olah, and if a female - a peace offering," he implicitly intended, by mentioning both possibilities, that if there would be both a male and a female there, he wants one of each type. Therefore both animals, the male and the female, receive their respective statuses, as an olah and as a peace offering.
In summary: in this Mishnah we learned two separate cases of a legal maneuver, according to the plain reading of the Bartenura. The first - a maneuver regarding the firstborn: consecrating the male offspring as an olah while it is still in its mother's womb, in order to avoid having to give it to the kohen, and specifically as an olah and not as a peace offering because of a rabbinic prohibition. The second - the offspring of a sin offering: consecrating the offspring while it is still in the womb, following the view that a fetus does not take on its mother's status until it is born, and in this way the offspring is saved from being one of the five sin offerings that are left to die and instead goes up on the altar as an olah or as a peace offering. In the next Mishnah we will see explicitly the view of Rabban Shimon ben Gamliel on this matter.