Mishnah Bekhorot 9:5-6

This Mishnah on animal tithe, Bekhorot 9:5-6, is far more than a dry accounting of agricultural rules. It plunges us into the very essence of communal responsibility and the intricate mechanisms of Divine accounting, revealing how abstract principles of sanctity become tangible realities through meticulous practice. It challenges our assumptions about when and how sacred obligations apply, even in seemingly straightforward matters like tithing.

Context

To truly grasp the weight of Mishnah Bekhorot 9:5-6, we need to situate it within the broader tapestry of Jewish law and practice, particularly concerning agricultural tithes (terumot and ma'aserot) and their historical trajectory. While the Mishnah here focuses specifically on ma'aser behemah (animal tithe), the principles it engages with resonate deeply with the laws of terumah (priestly portion) and ma'aser rishon (first tithe) and ma'aser sheni (second tithe) from produce. These agricultural laws were foundational to the covenantal relationship between God and Israel, underscoring the idea that the land's bounty was a gift from God, and a portion was to be set aside for His representatives (priests and Levites) and for communal celebration.

The existence of ma'aser behemah as a practice, even outside the Temple's immediate presence, speaks to a sophisticated understanding of how ritual obligations can persist and adapt. The biblical basis for this tithe is found in 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." This verse, though seemingly straightforward, has been the subject of extensive interpretation throughout rabbinic literature. The Mishnah here grapples with its practical application, raising questions about the conditions under which this obligation is operative, how different categories of animals are treated, and the precise methods of designation.

Crucially, the discussion of whether ma'aser behemah applies "in the presence of the Temple and not in the presence of the Temple" highlights a significant development in Jewish law. With the destruction of the First Temple and later the Second Temple, many agricultural laws, particularly those directly tied to Temple service and consumption, either ceased entirely or were significantly altered. However, the Mishnah here asserts the continuity of ma'aser behemah even in the absence of the Temple. This is not a trivial point; it signifies a commitment to preserving the spirit and practice of sanctification even when the physical locus of its fulfillment is gone. It suggests that certain obligations are so deeply embedded in the fabric of Jewish life that they transcend specific historical periods or geographical locations. This resilience of ritual practice in the face of cataclysmic historical events is a recurring theme in Jewish history and a testament to the dynamic nature of Jewish legal interpretation. The Mishnah, by detailing these nuances, invites us to consider how we maintain our connection to sacred practice in changing circumstances, demonstrating that the "how" of observance can be as instructive as the "what."

Text Snapshot

The Mishnah here delves into the complexities of animal tithe (ma'aser behemah), outlining its applicability and the nuances of its observance:

The mitzva of animal tithe is in effect both in Eretz Yisrael and outside of Eretz Yisrael, in the presence of, i.e., in the time of, the Temple and not in the presence of the Temple. It is in effect with regard to non-sacred animals but not with regard to sacrificial animals. And it is in effect with regard to the herd and the flock, but they are not tithed from one for the other; and it is in effect with regard to sheep and goats, and they are tithed from one for the other. And it is in effect with regard to animals from the new flock and with regard to animals from the old flock, but they are not tithed from one for the other.

As by right, it should be inferred: If in the case of animals from the new flock and the old flock, which do not carry the prohibition of mating diverse kinds when mated with each other because they are one species, are nevertheless not tithed from one for the other, then with regard to sheep and goats, which do carry the prohibition of mating diverse kinds when mated with each other, 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, whatever passes under the rod, the tenth shall be sacred to the Lord” (Leviticus 27:32), indicating that with regard to animal tithe, all animals that are included in the term flock are one species.

Animals subject to the obligation of animal tithe join together if the distance between them is no greater than the distance that a grazing animal can walk and still be tended by one shepherd. And how much is the distance that a grazing animal walks? It is sixteen mil. If the distance between these animals and those animals was thirty-two mil they do not join together. If he also had animals in the middle of that distance of thirty-two mil, he brings all three flocks to a pen and tithes them in the middle. Rabbi Meir says: The Jordan River divides between animals on two sides of the river with regard to animal tithe, even if the distance between them is minimal.

One who purchases an animal or has an animal that was given to him as a gift is exempt from separating animal tithe. With regard to brothers and partners, i.e., brothers who are partners in the inheritance of their father, when they are obligated to add the premium [bakalbon] to their annual half-shekel payment to the Temple they are exempt from animal tithe. Conversely, those whose halakhic status is like that of sons who are supported by their father and are obligated to separate animal tithe are exempt from adding the premium. The mishna clarifies: If the brothers acquired the animals through inheritance from the property in the possession of their father’s house they are obligated in animal tithe; but if not, they are exempt. How so? If they divided the inheritance between them and then reentered a partnership, they are obligated to add the premium and are exempt from animal tithe.

All cattle, sheep, and goats enter the pen to be tithed, except for an animal crossbred from diverse kinds, e.g., a hybrid of a goat and a sheep; a tereifa; an animal born by caesarean section; one whose time has not yet arrived, i.e., that is younger than eight days old, which is when animals become eligible for sacrifice; and an orphan. And what is an orphan? It is any animal whose mother died or was slaughtered while giving birth to it and thereafter completed giving birth to it. Rabbi Yehoshua says: Even if its mother was slaughtered but its hide exists at birth, i.e., if the mother’s hide is present after the birth, this is not an orphan.

There are three times during the year designated for gathering the animals that were born since the last date for animal tithe: Adjacent to Passover, and adjacent to Shavuot, and adjacent to Sukkot. And those are the gathering times for animal tithe; this is the statement of Rabbi Akiva. Ben Azzai says the dates are: On the twenty-ninth of Adar, on the first of Sivan, and on the twenty-ninth of Av. Rabbi Elazar and Rabbi Shimon say that the dates are: On the first of Nisan, on the first of Sivan, and on the twenty-ninth of Elul. And why did Rabbi Elazar and Rabbi Shimon say the twenty-ninth of Elul, and why did they not say the first of Tishrei? It is due to the fact that the first of Tishrei is the festival of Rosh HaShana, and one cannot tithe on a Festival. Consequently, they brought it earlier, to the twenty-ninth of Elul. Rabbi Meir says: The beginning of the new year for animal tithe is on the first of Elul. Ben Azzai says: The animals born in Elul are tithed by themselves, due to the uncertainty as to whether the halakha is in accordance with the opinion of Rabbi Meir, i.e., that the new year begins on the first of Elul, or in accordance with the opinion of Rabbi Elazar and Rabbi Shimon, which would mean that the new year begins on the first of Tishrei. According to the opinion of Rabbi Elazar and Rabbi Shimon, with regard to all animals that are born from the first of Tishrei until the twenty-ninth of Elul, those animals join to be tithed together. If five were born before Rosh HaShana and five after Rosh HaShana, those animals do not join to be tithed together. If five were born before a time designated for gathering and five after that time designated for gathering, those animals join to be tithed together. If so, why were three times stated for gathering the animals for animal tithe? The reason is that until the time designated for gathering arrives it is permitted to sell and slaughter the animals. Once the time designated for gathering arrives one may not slaughter those animals before tithing them; but if he slaughtered an animal without tithing it he is exempt.

In what manner does one tithe the animals? He gathers them in a pen and provides them with a small, i.e., narrow, opening, so that two animals will not be able to emerge together. And he counts the animals as they emerge: One, two, three, four, five, six, seven, eight, nine; and he paints the animal that emerges tenth with red paint and declares: This is tithe. Even if he did not paint it with red paint, or if he did not count the animals with a rod in accordance with the verse: “Whatever passes under the rod, the tenth shall be sacred to the Lord” (Leviticus 27:32), or if he counted the animals when they were prone or standing in place and did not make them pass through a narrow opening, these animals are tithed after the fact. But if he had one hundred animals and he took ten as tithe, or if he had ten animals and he simply took one as tithe, that is not tithe, as he did not count them one by one until reaching ten. Rabbi Yosei, son of Rabbi Yehuda, says: In that case too, it is tithe. If before the owner completed tithing his animals, one of those already counted jumped back into the pen among the animals that had not yet been counted, all those in the pen are exempt from being tithed, as each of them might be the animal that was already counted. If one of those animals that had been tithed, i.e., designated as the tenth, jumped back into the pen among the animals that had not yet been counted, creating uncertainty with regard to all the animals there which was the animal tithe, all the animals must graze until they become unfit for sacrifice, and each of them may be eaten in its blemished state by its owner once it develops a blemish. If two animals emerged as one, one counts them as twos, i.e., as though they came out one after the other. If he mistakenly counted two of the animals at the beginning or in the middle of the ten as one, and then continued his count, the ninth and the tenth are flawed, as he called the tenth: Ninth, and he called the eleventh: Tenth. If he mistakenly called the ninth: Tenth, and the tenth: Ninth, and the eleventh: Tenth, the three of them are sacred, although each has a different halakhic status. The ninth is eaten in its blemished state; and the tenth is animal tithe, which is sacrificed in the Temple and eaten by its owner; and the eleventh is sacrificed as a peace offering, from which the breast and the thigh are given to the priest. And the eleventh renders a non-sacred animal that is exchanged for the peace offering consecrated as a substitute and he sacrifices it as a peace offering; this is the statement of Rabbi Meir. Rabbi Yehuda said: The eleventh animal itself, which he called tenth, is a substitute for animal tithe, and does a substitute render another animal a substitute? Everyone agrees that a substitute is created only in exchange for an originally consecrated animal. The Sages said in the name of Rabbi Meir: The eleventh animal is not considered a substitute for the animal tithe, since if it were a substitute it would not be sacrificed, as the substitute for an animal tithe is not sacrificed. If one called the ninth animal: Tenth, and the tenth: Tenth, and the eleventh: Tenth, the eleventh is not consecrated. This is the principle: In any situation where the name of the tenth was not removed from the tenth animal, the eleventh that was called the tenth is not consecrated.

Close Reading

Insight 1: The Elasticity of Obligation – Temporal and Spatial Dimensions

One of the most striking aspects of this Mishnah is its expansive definition of when and where the obligation of animal tithe applies. The opening statement, "The mitzva of animal tithe is in effect both in Eretz Yisrael and outside of Eretz Yisrael, in the presence of, i.e., in the time of, the Temple and not in the presence of the Temple," immediately signals a departure from laws strictly dependent on the Temple's physical existence. This isn't merely a passive acknowledgement of a historical practice; it's an active assertion of its ongoing relevance.

The phrase "in the presence of, i.e., in the time of, the Temple" is particularly potent. It suggests that the spiritual essence of the Temple, its role as the center of divine communion and national identity, can imbue a practice with validity even after its physical destruction. This concept is not unique to ma'aser behemah; we see similar echoes in the continuation of certain mourning practices or the recitation of certain prayers that were originally tied to the Temple's existence. Here, however, it's applied to a practical, agricultural law. The Mishnah is teaching that the sanctification of livestock, a tangible resource, retains its efficacy as a means of connecting with the Divine will, regardless of the geopolitical and architectural realities. This resilience underscores a theological commitment to continuity and adaptation, demonstrating that the core principles of kedushah (sanctity) can find expression in diverse historical contexts.

Furthermore, the explicit inclusion of "outside of Eretz Yisrael" broadens the scope of this obligation beyond the borders of the Holy Land. While many agricultural laws were inherently tied to the soil of Eretz Yisrael, ma'aser behemah is presented as a practice with a universal application within the Jewish people. This suggests that the act of setting aside a portion of one's livestock for God is a fundamental aspect of Jewish stewardship, a recognition of Divine Providence over all of one's possessions, wherever one may reside. This universality offers a powerful message of unity and shared commitment across the diaspora, reinforcing a common identity and a shared set of responsibilities that transcend geographical separation. The Mishnah, in its initial lines, lays the groundwork for a sophisticated understanding of how ritual obligations are not static decrees but living principles that can adapt and endure.

Insight 2: The Logic of Species and the Authority of the Verse

The Mishnah then embarks on a fascinating excursus into the logic of classification, using the categories of animal species and the prohibition of kilayim (diverse kinds) as a framework for understanding the rules of tithing. The seemingly counter-intuitive progression – that animals which don't mix species (new flock and old flock) are not tithed from one to the other, while sheep and goats, which do mix species, are tithed from one to the other – requires careful unpacking.

The initial inference presented is: "If in the case of animals from the new flock and the old flock, which do not carry the prohibition of mating diverse kinds when mated with each other because they are one species, are nevertheless not tithed from one for the other, then with regard to sheep and goats, which do carry the prohibition of mating diverse kinds when mated with each other, is it not right that they will not be tithed from one for the other?" This is a classic a fortiori (kal vachomer) argument. The logic here is that if even within the same species (new vs. old flock), where the concern for mixing is absent, the tithe isn't pooled, then surely for different species (sheep and goats), where the prohibition of kilayim exists, the tithe wouldn't be pooled. This reasoning suggests that the prohibition of kilayim might be seen as a greater barrier to combining these animals for communal tithing purposes.

However, the Mishnah immediately pivots with "Therefore, the verse states: 'And all the tithe of the herd or the flock, whatever passes under the rod, the tenth shall be sacred to the Lord' (Leviticus 27:32), indicating that with regard to animal tithe, all animals that are included in the term flock are one species." This verse becomes the decisive factor, overriding the initial a fortiori reasoning. The verse is interpreted to establish that for the purpose of animal tithe, sheep and goats are considered a single "flock," thereby permitting them to be tithed together. This is a powerful illustration of how scriptural authority can refine or even overturn seemingly logical deductions based on other legal principles. The verse, in this context, acts as a hermeneutical key, clarifying the scope and application of the ma'aser behemah law. It teaches us that the definition of "species" for tithing purposes is not solely determined by biological or prohibitory categories like kilayim but is ultimately dictated by the specific language of the Torah. The verse, therefore, serves to unify disparate types of livestock under a common designation for tithing, emphasizing a communal aspect of this mitzvah.

Insight 3: The Practicalities of Sanctification – Proximity, Boundaries, and Exceptions

The Mishnah then moves from the theoretical to the intensely practical, detailing the conditions under which different groups of animals are considered to "join together" for tithing. This section reveals the underlying concern for communal responsibility and the practical limitations of shepherdly oversight. The rule that animals "join together if the distance between them is no greater than the distance that a grazing animal can walk and still be tended by one shepherd," defined as sixteen mil, is a fascinating attempt to quantify a functional proximity.

The logic here is that if animals are within a reasonable range of a single shepherd, they can be considered a unified flock for the purpose of communal tithing. This practical consideration acknowledges that a shepherd's reach is finite. The subsequent illustration, where thirty-two mil (twice sixteen mil) separates flocks, preventing them from joining unless an intermediate flock exists, further refines this concept. The intermediate flock acts as a bridge, allowing the separated groups to be brought together and tithed collectively. This highlights a desire to maximize the efficiency and communal scope of the tithing process, bringing as many animals as possible under its purview, provided they are within a manageable sphere of care.

Rabbi Meir's view that "The Jordan River divides between animals on two sides of the river... even if the distance between them is minimal" introduces a geographical boundary that overrides the measure of physical distance. The Jordan River, a significant natural barrier and a symbolic demarcation within the Land of Israel, creates a halakhic separation. This demonstrates that for certain halakhic purposes, natural geographical features can act as definitive lines of division, irrespective of precise measurements of proximity. This introduces an element of the symbolic and the natural landscape into the purely practical considerations of tithing.

Finally, the Mishnah lists several categories of animals that are exempt from entering the pen for tithing: "an animal crossbred from diverse kinds... a tereifa... an animal born by caesarean section; one whose time has not yet arrived... and an orphan." These exceptions are instructive. The crossbred animal is exempt, possibly due to the kilayim prohibition, reinforcing the earlier discussion. A tereifa (a non-kosher animal due to internal defects) is unfit for sacrifice or Temple use, making its tithing moot. An animal born via caesarean section or one too young (not yet arrived) are also excluded, implying that only viable, mature animals are subject to this tithe. The orphan category, further defined by Rabbi Yehoshua, points to a concern for the animal's well-being and its status relative to its mother. These exceptions reveal that the process of sanctification is not indiscriminate; it applies to animals that are healthy, mature, and have a clear lineage, underscoring the idea that holiness is associated with wholesomeness and a proper state of being. The meticulous detail in these exceptions underscores the granular nature of halakha, where even seemingly minor distinctions have significant implications.

Two Angles

Angle 1: Rashi's Emphasis on the Divine Command and Communal Unity

Rashi, in his commentary on the Mishnah, often grounds his interpretations in the direct implications of the biblical verse and the overarching purpose of the mitzvah. For ma'aser behemah, Rashi would likely emphasize the divine imperative found in Leviticus 27:32, "the tenth shall be sacred to the Lord." His focus would be on the act of consecration as a direct response to God's command, rather than solely on the practicalities of livestock management. When the Mishnah discusses the joining of different flocks, Rashi would interpret this through the lens of fulfilling this divine command as effectively and inclusively as possible.

He would see the verse's declaration that "all animals that are included in the term flock are one species" as a divine decree that overrides any perceived differences between sheep and goats for the purpose of tithing. This interpretation prioritizes the unity of the commandment as revealed by God. The joining of flocks within a certain radius, for Rashi, would be about creating a communal unit that collectively fulfills the obligation. It's not just about individual animals but about the shepherd's entire flock being brought into God's service. The practicalities of distance and shepherd's reach are secondary to the primary goal of ensuring that the tenth animal, designated through a unified process, is indeed consecrated to the Lord. Rashi would likely highlight that the designation of the tenth animal is a direct act of fulfilling a specific biblical injunction, and the rules about joining flocks are designed to facilitate this singular, important act of consecration for the entire communal unit.

Angle 2: Ramban's Focus on the Underlying Logic and Practical Rationale

Nachmanides (Ramban), while deeply reverent of biblical authority, often delves into the underlying logic and practical rationale behind the commandments. In his approach to ma'aser behemah, he would likely seek to understand the wisdom inherent in the rules governing the joining of flocks and the exceptions to tithing. When the Mishnah presents the a fortiori argument regarding kilayim and then overturns it with the verse, Ramban might explore the tension between these two sources of understanding.

He would likely interpret the verse "all animals that are included in the term flock are one species" as a specific halakhic definition for the purpose of tithing, one that establishes a legal unity for these animals despite their biological differences, thus allowing them to be tithed together. Ramban might also ponder the practical reasons for the sixteen-mil radius. He would likely see it as a measure rooted in the reality of shepherding, acknowledging the practical limits of a shepherd's ability to oversee and manage animals effectively. The exceptions, such as the tereifa or the young animal, would be understood through a lens of hiddur mitzvah (beautifying the mitzvah) and the inherent fitness for sanctity. An animal that is flawed or immature is not in a state to be fully consecrated or to fulfill its role in the Divine economy. Ramban might suggest that the ultimate goal is to offer the best and most appropriate to God, and the rules for joining flocks and the exemptions are all designed to ensure that the tithe is separated in a manner that reflects both Divine will and rational stewardship. He would see the law as a system of wisdom, where each rule serves a purpose, whether it's to fulfill a specific divine decree or to ensure the practical and meaningful execution of that decree.

Practice Implication

The Mishnah's detailed discussion on the joining of flocks and the sixteen-mil radius has a profound implication for how we approach communal responsibility, especially in our modern, dispersed lives. Consider a scenario: A small Jewish community lives in a rural area, and several families are involved in raising livestock. One family has a small herd of ten sheep, another has five goats a few miles away, and a third has eight sheep and goats closer by. According to the Mishnah, if the distance between any of these groups is within the sixteen-mil radius, and they can be reasonably considered under one shepherd's purview (even if metaphorically, through coordinated effort), they should be considered as one unit for the purpose of ma'aser behemah.

This insight compels us to think beyond individualistic observance. It suggests that if a community shares resources or has interconnected interests, their obligations, even those seemingly tied to individual possessions, can and should be aggregated. In our context, this might translate to communal agricultural projects, shared food pantries, or even collective charitable endeavors. The principle is that if a group of people can functionally come together to manage a resource (like livestock for tithing), they should do so.

The Mishnah's rule about the intermediate flock being the bridge for separated flocks (thirty-two mil apart) is particularly instructive. It implies that even when geographical or logistical challenges seem to create insurmountable divisions, creative solutions and intermediary efforts can bridge the gap and enable collective observance. For a modern community, this could mean establishing a coordinating committee for communal tithes, setting up shared transportation for produce to a communal distribution point, or creating a system for pooling resources for a religious purpose. The Mishnah teaches us that the spirit of communal tithing is about actively seeking ways to unite our efforts and resources to fulfill our obligations to God, rather than passively accepting divisions as insurmountable barriers. It encourages us to be proactive in finding the "intermediate flock" that can connect disparate elements of our community and bring them into unified service.

Chevruta Mini

Question 1: The "Flock" as a Legal Construct

The Mishnah states that the verse "And all the tithe of the herd or the flock... the tenth shall be sacred to the Lord" indicates that "all animals that are included in the term flock are one species" for the purpose of animal tithe. This overrides the initial a fortiori reasoning based on the prohibition of kilayim between sheep and goats.

What is the fundamental trade-off being made here? Are we prioritizing the principle of unifying diverse animals for a communal sacred purpose, as dictated by the verse, even if it seems to blur natural or legal distinctions that normally separate them (like kilayim)? Or is the verse establishing a specific, overriding definition of "flock" for this mitzvah that supersedes other considerations, suggesting that the purpose of the tithe itself creates a unique category?

Question 2: The Sixteen-Mil Radius and Communal Boundaries

The Mishnah establishes a sixteen-mil radius for animals to "join together" for ma'aser behemah, based on the distance a grazing animal can walk while still being tended by one shepherd. Rabbi Meir then adds that the Jordan River acts as a boundary, even if the distance is minimal.

What is the tension between these two rules? Does the sixteen-mil radius represent a purely practical, functional measure of proximity and manageability, directly linked to the shepherd's role and the animal's care? Conversely, does Rabbi Meir's view introduce a more symbolic or territorial understanding of boundaries, where natural geographical features create distinct communal or halakhic zones that can override mere physical distance? How do these different approaches to defining communal boundaries for religious observance inform our understanding of community itself?

Takeaway

Mishnah Bekhorot 9:5-6 reveals that the sanctification of our possessions is a dynamic process, requiring both adherence to divine decree and intelligent adaptation to the practical realities of our lives and communities.