In the ninth chapter of Tractate Bechoros, Mishnah 7, we arrive at the practical side of the animal tithe: how to separate it in practice.
It is stated in the Torah (Vayikra 27:32): "And all the tithe of the herd or the flock, whatever passes under the rod, the tenth one shall be holy to Hashem" - the tenth animal that passes under the staff becomes sanctified to Hashem. From the wording of the verse, it emerges that the Mishnah describes a reality in which the animals actually pass under the rod. However, this is not an absolute requirement: after the fact, even if the person does not have a staff in hand, it is sufficient for him to count the tenth animal.
"Ha'asiri" - an ordinal number, not a measurement:
The term "tenth" has two different, unrelated meanings: a tenth as a fraction - one out of ten, meaning ten percent; and the tenth as an ordinal number - the one that comes after the ninth. The correct understanding in the verse is the second meaning: the animals must actually be counted, and every tenth animal in the count is the animal tithe. Conversely, someone who has one hundred animals and knows this from a previous count is not allowed to take ten of them and say, "These are a tenth of the herd" (as explicitly stated in the next Mishnah). Thus, we find that the animal tithe is not at all similar to the way agricultural produce is tithed.
How we tithe in practice:
"Konesin ladir" - they gather the entire flock or herd into a single corral from which they cannot exit.
"Ve'osin pesach katan, kedei shelo yehu shenayim yecholin latzeis ke'echas" - the width of the exit must be narrow enough so that the animals will exit one after the other and not two at once. This prevents any confusion.
"Umoneh bashevet: echad, shenayim, sheloshah, arba'ah, chamishah, shishah, shiv'ah, shemonah, tish'ah" - the Mishnah explicitly speaks of an actual counting, using the rod, and the tenth in the count is identified as the tithe.
"Vehayotzei asiri sokero basikra" - "sikra" is red paint, and "sokero" means that he paints it red.
"Ve'omer: harei zeh ma'aser" - he officially declares regarding it that this is his animal tithe.
Two additional components complete the optimal method of separation initially:
Berachah: Tosafos writes that one must recite a blessing before separating the tenth - "lehafrish ma'aser" (to separate the tithe).
Exiting on their own: It is fitting that the animals should exit on their own, for this is the meaning of the verse, and one does not chase them out. Therefore, the custom was to place the mother sheep outside, bleating and calling the lambs to follow them out, so that the exit is done by the animals' own volition.
What is not strictly required:
All of the above is the optimal way, but the Mishnah teaches that most of the details are not absolute requirements:
He did not paint the tenth one red.
He did not count them with a rod, even though this is implied by the verse.
He did not pass them through an opening at all, but rather counted them when they were in a state of "ravutz" - crouching on the ground - or standing.
Even the berachah, as well as the explicit declaration "This is a tithe", are not absolute requirements.
Even the actual counting with the mouth is not an absolute requirement: if it is clear to all onlookers that this is the tenth one emerging from the opening - for example, someone who has a sore throat and counts with his fingers, and upon reaching ten holds up ten fingers - this is effective after the fact.
Conversely, two methods are not effective at all:
If someone knew he had one hundred animals and he took ten of them, knowing that they are ten percent of all the year's offspring in his herd, these are not ma'aser.
If someone had exactly ten animals and he took one of them without first counting the nine, this is not ma'aser.
The reason for this: According to the verse, the ma'aser must be "the tenth" in the order of counting. If he did not count and identify that it is the tenth coming after the ninth, the separation is ineffective.
Rabbi Yosei bar Yehudah argues on this last point: "Rabbi Yosei bar Yehudah omer: harei zeh ma'aser" - "Rabbi Yosei bar Yehudah says: it is ma'aser." If one takes ten percent of what he has without counting them, his separation is effective after the fact. The source of his ruling is derived from the laws of Terumah taken from produce grown in the ground, as Terumah Gedolah and Terumas Ma'aser are taken by estimation rather than by actual measuring and counting. Regarding this, the verse states, "And your Terumah shall be reckoned to you," from which they derived that thought alone is sufficient, and there is no need to count ten, but rather taking a tenth is enough. However, the halachah does not follow his opinion. Rather, there is an obligation to physically count, and each tenth is designated as ma'aser through its counting.
For example: He had fifteen animals, and the first tithe season arrived of the three seasons taught in the previous Mishnah, fifteen days before Pesach. He brings all fifteen into the corral, ten go out, and the tenth becomes ma'aser behemah; the remaining five that did not go out will enter the corral at the next season, fifteen days before Shavuos, and following that, fifteen days before Sukkos. If the third season arrives and he has fifteen untithed animals, he brings them into the corral, the tenth goes out and becomes ma'aser, and the final five are exempt and do not combine with the next year's animals, since they do not belong to the same time period.
When the Order of Separation is Disrupted:
From here, the Mishnah transitions to a new topic, which is discussed in the continuation of our Mishnah as well as the final Mishnah in the tractate: what is the law when the order of separation is disrupted. There are two cases before us, and in both of them, the person separating the ma'aser faces a problem.
An animal jumped from the counted ones into the corral: One of the nine that were counted and are not ma'aser returned to the corral. Now there is no longer a way to complete a count of ten from eligible animals, because the concern is not merely that the tenth coming out will be the one that was already counted. Even if the one that was already counted came out at the count of six, it turns out that what he calls seven is really six, since counting it as six was a false count. Therefore, there is no longer a possibility to count these animals, and everything in the corral is exempt.
An animal jumped from the tithed ones into the corral: The one that jumped inside is the animal that was already identified as ma'aser (for example, the red paint ran out and he settled for a visual mark) and now it mixed with the others and cannot be identified. We do not apply the principle of nullification by majority here, because even though nullification by majority is a Torah law, live, whole animals are not nullified, as they are too significant to lose their identity. Consequently, all the animals are doubtfully ma'aser: they cannot be offered, lest they are not the ma'aser, and he cannot refrain from offering them and eat them at home, lest they are the ma'aser. Therefore, he must wait until each of them develops a permanent blemish, and then he will be permitted to eat it either way: if it is the ma'aser, it is permitted to slaughter a blemished ma'aser animal and eat it; and if it was never the ma'aser to begin with, it belongs to him, and it is permitted to be eaten with its blemish.
And so reads the Mishnah in brief:
"Kafatz echad min hamenuyin lesocho, harei eilu peturin" - "If one of the counted ones jumped into it, they are exempt." If one of the nine that were counted and is not ma'aser returned to the corral, everything remaining in the corral is exempt.
"Min hama'usarin lesocho, kulan yir'u ad sheyistav'u, veye'achlu bemuman labe'alim" - "If one of the tithed ones jumped into it, they must all graze until they become blemished, and they may be eaten by the owners with their blemish." If the one that was counted as the tenth returned, all the remaining ones must graze until a blemish befalls them, and once a permanent blemish befalls them, they may be eaten by the owners one by one.
In summary: In this Mishnah, we learned the method for separating ma'aser behemah: entering the corral, a narrow opening that lets them out one by one, counting with a rod, marking the tenth with red paint and declaring, "This is ma'aser," and ideally even a berachah and the animals exiting on their own. We established that most of these details do not invalidate the process if omitted, and even counting verbally does not invalidate it, but the counting itself in order (that the ma'aser must specifically be the tenth) is the fundamental requirement that invalidates it if omitted, unlike the opinion of Rabbi Yosei bar Yehudah who learns from Terumah that thought is sufficient. Finally, we discussed two cases where the order is disrupted: when one of the counted ones jumps into the corral, which exempts everything, and when a tithed one jumps in, which causes them all to graze until they become blemished and are eaten by the owners with their blemish.
In the next section, in the final Mishnah of the tractate, we will continue to discuss cases where the order of separation is disrupted, and their laws.