Mishnah Bekhorot 9:1-2

Here is a chevruta-level analysis of Mishnah Bekhorot 9:1-2:

Sugya Map

• Issue: The parameters and practical application of the mitzvah of Ma'aser Behemot (animal tithe).
• Nafka Mina(s):
  • The applicability of Ma'aser Behemot in different geographical locations (Eretz Yisrael vs. Diaspora) and time periods (Temple era vs. post-Temple).
  • The distinction between sacred and non-sacred animals for tithing purposes.
  • The definition of "flock" (tson) and "herd" (bakar), and whether they are considered a single category for tithing.
  • The rule of combining animals from different flocks/herds for tithing based on proximity.
  • Exemptions from Ma'aser Behemot.
  • The timing of Ma'aser Behemot and the definition of the "year" for this mitzvah.
  • The practical mechanics of tithing and the ramifications of errors.
• Primary Sources:
  • Mishnah Bekhorot 9:1-2
  • Leviticus 27:32 ("And all the tithe of the herd or the flock, whatever passes under the rod, the tenth shall be sacred to the Lord.")
  • Talmud Bavli (Bekhorot 49a-58b, Menachot 44a-45a, Rosh Hashanah 31b, etc.)

Text Snapshot

Mishnah Bekhorot 9:1:

המעשר בהמה נוהג בארץ ובחוצה לארץ, בפני הבית ושלא בפני הבית. נוהג בקודש ושלא בקודש, אבל לא במוקדשין. נוהג בבקר ובצאן, ואין מעשרין מזה על זה. נוהג בכבשים ובעזים, ומתעשרין מזה על זה. נוהג בחדש ובישן, ואין מתעשרין מזה על זה.

Analysis:

• "המעשר בהמה נוהג בארץ ובחוצה לארץ, בפני הבית ושלא בפני הבית." The Mishnah immediately establishes the broad scope of this mitzvah. The juxtaposition of "in the Land and outside the Land" and "in the presence of the Temple and not in the presence of the Temple" is striking. The Rishonim will grapple with the practical implications of this, especially the shelo bifnei haBayit aspect.
• "נוהג בקודש ושלא בקודש, אבל לא במוקדשין." This distinguishes between hekdesh (sanctified property, specifically intended for Temple use) and kodashim kalim (lighter sacrifices) or secular animals. Ma'aser Behemot applies to the latter, but not to animals already designated for the Temple.
• "נוהג בבקר ובצאן, ואין מעשרין מזה על זה. נוהג בכבשים ובעזים, ומתעשרין מזה על זה." This is a crucial distinction. "Herd" (bakar) and "flock" (tson) are treated separately, while sheep (כבשים) and goats (עזים), both subsets of tson, can be tithed from one to the other. The Mishnah implies that bakar and tson are distinct categories, while sheep and goats are considered a single category for tithing.
• "נוהג בחדש ובישן, ואין מתעשרין מזה על זה." Chadash (newly born) and yashan (born in previous years) are distinct for tithing purposes, mirroring the principle of shana l'shana (year to year) seen in other tithes.

Mishnah Bekhorot 9:2:

ומה טעם? אם לחדש וישן, שאינן מתערבין משום כלאים, אינן מתעשרין מזה על זה, קל וחומר לכבשים ועזים, שמתערבין משום כלאים, שלא יתעשרו מזה על זה. והכתוב אומר: "וכל מעשר בקר וצאן, כל אשר יעבור תחת השבט, עשירי יהיה לה' ". כל הצאן מין אחד.

Analysis:

• "ומה טעם?" The Mishnah provides a kal va'chomer (a fortiori) argument to explain why sheep and goats are tithed from one to the other. The premise is that if chadash and yashan, which are distinct for tithing (because they don't intermingle for kilayim purposes, implying a certain degree of separation), are tithed from one to the other, then sheep and goats, which do intermingle for kilayim (as they are considered one species for this purpose), should not be tithed from one to the other.
• "אם לחדש וישן, שאינן מתערבין משום כלאים, אינן מתעשרין מזה על זה, קל וחומר לכבשים ועזים, שמתערבין משום כלאים, שלא יתעשרו מזה על זה." This logical structure is inverted in the Mishnah's phrasing. The Mishnah is actually arguing: If chadash and yashan (which are not tithed from one to the other) are distinct entities, then kilayim is not the operative factor. The actual a fortiori is: If chadash and yashan, which are distinct in their "year" and therefore not tithed from one to the other, then sheep and goats, which are not distinct in their "year" (they are considered one species for various purposes), and the verse groups them, should be tithed from one to the other. The Mishnah's wording is a bit convoluted. The core idea is that the verse's grouping of "herd or flock" and the specific inclusion of "sheep and goats" indicates a unification of species for tithing.
• "והכתוב אומר: 'וכל מעשר בקר וצאן...'" The verse is cited to support the idea that bakar and tson are treated as distinct categories, but within tson, the verse's use of "flock" (tson) implies unification.
• "כל הצאן מין אחד." This is the explicit conclusion: all animals categorized as tson (sheep and goats) are considered a single species for the purposes of Ma'aser Behemot. This is the key to understanding why they are tithed from one to the other, unlike bakar and tson, or chadash and yashan.

Readings

Rambam on Mishnah Bekhorot 9:1:1

The Rambam (Maimonides) offers a crucial clarification regarding the temporal and geographical scope of Ma'aser Behemot. He states: "We have already mentioned many times that the Ma'aser Behemot is sacrificed, its fat and blood [consumed], and its owner eats it in Jerusalem. If it happened to have a blemish, it is eaten [by the owner] with a blemish anywhere. And what is stated here, that it is in effect 'in the presence of the Temple and not in the presence of the Temple,' is a Torah law. But due to a potential transgression, they decreed that it is not in effect except in the presence of the Temple, lest there be no Temple, and it be eaten outside the Land without a blemish."¹

Chiddush: The Rambam explains that the mitzvah of Ma'aser Behemot was indeed a Torah law applicable in all times and places. However, a rabbinic decree (takana) limited its practical observance to the Temple period. This decree was enacted gzeira shavat (a preventative measure) to avoid the possibility of animals being eaten outside the Land of Israel without a blemish, which would be a violation of the principle that Ma'aser Behemot is to be eaten in Jerusalem, or consumed with a blemish if one is present. This takana thus creates a distinction between the Torah's original ruling and its practical application in later times.

Tosafot Yom Tov on Mishnah Bekhorot 9:1:1

Tosafot Yom Tov, in his commentary on the Mishnah, notes the seemingly arbitrary order of topics: "In every place, it is customary to mention the firstborn (bekor), tithe (ma'aser), and Passover (Pesach), as they are similar in their [Temple] gifts, as we learned in the end of Perek Ha'Challa of Masechet Zevachim. Therefore, ma'aser is taught incidentally to bekor. And Passover, its laws are numerous, it is taught in Masechet Pesachim."²

Chiddush: This is not a chiddush in the halakhic sense but rather an explanation of the Mishnah's organizational logic. Tosafot Yom Tov is highlighting that the Ma'aser Behemot is discussed here not as a standalone topic, but as being linked to bekorot (firstborn animals), which is the primary subject of Masechet Bekhorot. The connection is the shared concept of a portion of the animal being designated for the Kohen or the Temple. He posits that Pesach is treated separately because its laws are more extensive.

Tosafot Yom Tov on Mishnah Bekhorot 9:1:3 (regarding Shelo Bifnei HaBayit)

Tosafot Yom Tov further elaborates on the takana concerning Ma'aser Behemot outside the Temple era: "The Rabbi [Bartenura] wrote: And now the Sages said not to declare Ma'aser Behemot due to a transgression, etc., because in 'sit and do not act' (yeshiv v'al ta'aseh), one can nullify a Torah law, as written in the first chapter of Masechet Yevamot. Furthermore, there is no prohibition of eating before tithing. Rather, the Sages established a time, as below in Mishnah 6. And see the language of Rashi that I have copied in the third chapter of Masechet Shekalim. And in the Gemara, even for bekor, to acquire them for a non-Jew so they not be consecrated from the beginning. And Tosafot concludes in the first chapter, page 3, that it is indeed so, that for us, it is a mitzvah to participate with a non-Jew, etc., before it comes out into the world, in order to exempt it from bechorah. And as concluded in the Tur, Siman 466."³

Chiddush: Tosafot Yom Tov, referencing Rashi and Tosafot, explains why the Sages decreed against observing Ma'aser Behemot when the Temple is not standing. The principle of yeshiv v'al ta'aseh allows for rabbinic enactments to override Torah law in certain situations to prevent greater transgressions. Here, the concern was eating Ma'aser Behemot outside the Temple, which would violate the sanctity of the Mishkan/Bayit. He also notes that there isn't an immediate prohibition of eating before tithing, allowing the Sages to establish specific times for its observance. The mention of bekor and acquiring for a non-Jew points to related strategies for dealing with Temple-related mitzvot in the absence of the Temple.

Tosafot Rabbi Akiva Eiger on Mishnah Bekhorot 9:1:1

Rabbi Akiva Eiger, in his glosses, analyzes the Mishnah's statement that "all the flock is one species": "In the Mishnah it is implied that all tson is one. That is why it is not written 'herd and flock' and then written 'and all Ma'aser Behemot,' from which we would know from an a fortiori that [even] new and old [are one]. Rather, it comes to include that all tson is one. And that we do not tithe from the herd for the flock, and we do not say 'herd and flock' that it comes to include and mix them all as one. And if from an a fortiori of new and old, we would say that sheep and goats prove it [i.e., are not tithed from one to the other]. For regarding this, we learn from the analogy of tithe of grain, that we do not tithe from one to the other. Gemara."⁴

Chiddush: Rabbi Akiva Eiger interprets the Mishnah's structure as emphasizing that "flock" (tson) as a category is considered one species for tithing. He argues that if the Torah had simply said "all Ma'aser Behemot," one might have inferred (from the kal va'chomer with new and old animals) that even different species like cattle and sheep would be tithed together. The specific mention of "herd or flock" separates them. Furthermore, he posits that the Mishnah's distinction between bakar/tson (not tithed from one to another) and sheep/goats (tithed from one to another) is based on the principle that sheep and goats are considered a single species (kol hatzon min echad), unlike bakar and tson which remain distinct categories. This clarifies why sheep and goats can be inter-tithed, while cattle and sheep cannot.

Friction

The most significant point of friction lies in the Mishnah's kal va'chomer argument and its application of the verse in Leviticus 27:32. The Mishnah states:

"And what is the reason? If [animals from] the new [flock] and the old, which do not mix because of kilayim, are nevertheless not tithed from one for the other, then with regard to sheep and goats, which do mix because of kilayim, is it not right that they will not be tithed from one for the other? Therefore, the verse states: 'And all the tithe of the herd or the flock... all the flock is one species.'"⁵

This phrasing is notoriously challenging. The kal va'chomer seems to operate in reverse of the conclusion. The standard kal va'chomer works from a lesser case to a greater case. Here, the Mishnah presents the lesser case as "new and old," which are not tithed from one to the other. It then contrasts this with sheep and goats, which are tithed from one to the other. The premise is that new and old animals are distinct because they don't mix for kilayim purposes. Sheep and goats, conversely, do mix for kilayim purposes, implying they are more unified. Therefore, the a fortiori should lead to the opposite conclusion: if the more distinct entities (new/old) are not inter-tithed, then the more unified entities (sheep/goats) should be inter-tithed.

The Mishnah's phrasing creates confusion by stating: "If [animals from] the new [flock] and the old... are nevertheless not tithed from one for the other, then with regard to sheep and goats... is it not right that they will not be tithed from one for the other?" This seems to imply that the lack of inter-tithing between new and old should lead to a similar non-inter-tithing between sheep and goats. This directly contradicts the Mishnah's later statement that sheep and goats are tithed from one to the other.

The resolution offered by Tosafot Rabbi Akiva Eiger, and implied by the Rishonim generally, is that the Mishnah is using the kilayim distinction as a means to establish unity or distinction, but the ultimate ruling comes from the verse. The Mishnah is highlighting the reason why new and old are separate: their lack of intermingling for kilayim signifies a fundamental distinction. Sheep and goats, on the other hand, intermingle for kilayim, indicating their unity. The a fortiori is poorly phrased, but the intended logic is:

• New/old are distinct for tithing purposes because they are distinct species (or at least distinct "years") that do not intermingle for kilayim.
• Sheep and goats intermingle for kilayim, demonstrating they are considered one species.
• Therefore, based on the verse grouping "flock" and the unity of sheep and goats, they are tithed from one to the other.

The strongest kushya: How can the Mishnah present a kal va'chomer that appears to lead to the opposite conclusion of its own ruling? The Mishnah seems to argue: if distinct entities (new/old) are not inter-tithed, then unified entities (sheep/goats) should also not be inter-tithed. This is logically flawed.

The best terutz: The intended logic of the Mishnah is not a direct kal va'chomer in the standard sense but rather a method of contrasting two categories to highlight the significance of the verse. The Mishnah first states the rule: new/old are not inter-tithed. It then states the reason for this separation: they don't mix for kilayim. It then contrasts this with sheep and goats, which do mix for kilayim. The a fortiori is not about deriving the sheep/goat rule from the new/old rule, but rather using the new/old distinction (and its reason) to emphasize the unity of sheep and goats. The Mishnah is essentially saying: "Look how distinct new and old are, to the point that even though they are both sheep, they are not inter-tithed because they are considered separate. Now, consider sheep and goats – they are so unified that they do intermingle for kilayim. This level of unity, supported by the verse ('all the flock is one species'), dictates that they are tithed from one to the other." The verse is the ultimate authority, and the kal va'chomer is a didactic tool to understand its implications.

Intertext

Leviticus 27:32

"וְכָל מַעְשַׂר בָּקָר וָצֹאן, כֹּל אֲשֶׁר יַעֲבֹר תַּחַת הַשָּׁבֶט, הַעֲשִׂירִי יִהְיֶה קֹדֶשׁ לַיהוָה." "And all the tithe of the herd or the flock, whatever passes under the rod, the tenth shall be sacred to the Lord."

This verse is the bedrock source for Ma'aser Behemot. The Mishnah's interpretation of "herd or flock" (bakar v'tson) as distinct categories, but "flock" (tson) as a unified species, is directly derived from this verse and the surrounding halachic discourse. The phrase "whatever passes under the rod" (kol asher ya'avor tachat hashevet) is the source for the tithing method described later in the Mishnah, where animals are counted as they pass through a narrow opening.

Mishnah Shekalim 2:4

"הַשֶּׁקֶל מְטַמֵּא בִמְרִיצָה, וְהַתְּרוּמָה מְטַמְּאָה בְמִשְׁקָל. וְהַמַּעֲשֵׂר בֵּינוֹתֵיכֶם. אֵימָתַי? בִּזְמַן שֶׁבֵּית הַמִּקְדָּשׁ קַיָּם. וְאִם אֵינוֹ קַיָּם, מְטַמֵּא בְמִשְׁקָל." "The shekel defiles by carrying, and the terumah defiles by weight. And the tithe among you. When? When the Temple exists. And if it does not exist, it defiles by weight."

This Mishnah from Shekalim discusses the laws of ritual impurity related to Temple contributions. While not directly about Ma'aser Behemot, it touches upon the concept of tithing (ma'aser) and its connection to the Temple's existence. The contrast between "when the Temple exists" and "if it does not exist" echoes the Mishnah's discussion of Ma'aser Behemot being observed bifnei haBayit and shelo bifnei haBayit. It highlights the broader theme that the practical observance of many mitzvot is intrinsically linked to the presence and functionality of the Temple. The Rishonim here (and in our Sugya) discuss the rabbinic decree that limits Ma'aser Behemot observance to the Temple era, suggesting a similar logic of preventing transgression when the central sanctuary is absent.

Psak/Practice

The halacha regarding Ma'aser Behemot is significantly impacted by the rabbinic decree mentioned by the Rambam and elaborated upon by Tosafot. While the Torah law (d'Oraita) is that Ma'aser Behemot applies in all times and places, the Sages decreed (takana) that it is only to be observed when the Beit HaMikdash stands. This is to prevent animals from being eaten outside of Jerusalem, or without a blemish, which would constitute a transgression.

Therefore, in practice today, the mitzvah of separating Ma'aser Behemot is not observed. The primary concern is to avoid eating an animal designated as tithe outside of Jerusalem or in a blemished state without proper authorization. The Tur (Siman 466) and Shulchan Aruch (Yoreh De'ah 315) reflect this, stating that Ma'aser Behemot is not practiced today due to the absence of the Temple.

However, there are discussions in later poskim about the status of animals born today that would have been subject to Ma'aser Behemot. Some suggest that if one wishes to be stringent, they could designate an animal as ma'aser with the intention that it be consumed in Jerusalem if the Temple is rebuilt, or that it be allowed to develop a blemish and then be eaten by the owner. But this is not a mandatory obligation (chiyuv). The meta-heuristic is that when a d'Oraita mitzvah is suspended due to the absence of the Temple, the default practice is to refrain from its observance to avoid transgressing the associated prohibitions.

Takeaway

The Ma'aser Behemot laws reveal a nuanced interplay between Torah law and rabbinic decrees, demonstrating how practical observance can be suspended to safeguard against transgression. The categorization of animals—herd versus flock, sheep versus goats—reflects an ancient system of defining species for ritual purposes, anchored in biblical language.