Mishnah Bekhorot 9:7-8

This Mishnah isn't just about counting sheep; it's a fascinating window into how ancient Israelite society grappled with abstract concepts of communal responsibility, the sanctity of resources, and the very definition of "belonging" within a divinely ordained system.

Context

To truly appreciate the intricacies of ma'aser behemah (animal tithe), we need to place it within the broader context of Temple-era agriculture and the specialized roles within the priestly and Levitical system. The obligation to tithe animals, as detailed in the Torah (Leviticus 27:31-33), was a fundamental part of supporting the Levites, who themselves were designated to serve the priests. Unlike the tithe of produce ( ma'aser dagan), which had its own complex rules and observances, animal tithes carried a unique set of challenges due to the mobile and living nature of the "commodity." This Mishnah, therefore, doesn't just present abstract laws; it reflects the practical realities of shepherds and livestock owners in ancient Israel, navigating the requirements of a sacred economy. The fact that this law applied both in the Land of Israel and outside, and in the presence or absence of the Temple, speaks to its enduring importance and the desire to maintain these sacred obligations even when the central sanctuary was not accessible. This highlights a sophisticated understanding of how religious observance could transcend physical proximity to the Temple itself, maintaining a spiritual connection and continuity of practice.

Text Snapshot

The Mishnah begins by laying out the fundamental parameters of ma'aser behemah:

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. (Mishnah Bekhorot 9:7a)

This initial statement sets the stage for a detailed exploration of the halachot governing animal tithes, moving from broad principles to specific distinctions. The Mishnah then delves into the logic behind these distinctions:

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. (Mishnah Bekhorot 9:7b-c)

The Mishnah's exploration continues with practical logistical considerations:

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. (Mishnah Bekhorot 9:7d-g)

Further exemptions and specifications follow:

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. (Mishnah Bekhorot 9:8a-e)

Finally, the Mishnah concludes with a detailed description of the tithing process and potential errors:

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, 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 them 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. (Mishnah Bekhorot 9:7h-9:8k)

Close Reading

Insight 1: The Logic of Distinction - Species and "Flock" Unity

The Mishnah opens with a series of distinctions: the applicability of ma'aser behemah (animal tithe) in Israel and the diaspora, during the Temple era and beyond, to non-sacred versus sacrificial animals, and crucially, the titheability of different categories of animals from one another. The most striking of these distinctions, and the one the Mishnah immediately seeks to explain, is the difference between "the herd and the flock" versus "sheep and goats." It states that the herd and flock are not tithed from one for the other, but sheep and goats are. This is counterintuitive at first glance. Why would distinct species be tithed together, while animals within what we might consider the same broad category (like sheep and goats, often grouped together as "flock") are treated differently?

The Mishnah's explanation hinges on the prohibition of kilayim (diverse kinds) in mating. It presents a kal va'chomer (a fortiori) argument:

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?

This argument, however, is presented as a rejection of what seems logical. The Mishnah says that if animals of the same species (new and old flock, which are both essentially sheep or goats) are not tithed from one another, then it would stand to reason that animals of different species (sheep and goats, which do fall under the kilayim prohibition) should also not be tithed from one another. But the Mishnah states the opposite: sheep and goats are tithed from one another, while herd and flock are not. This means the kilayim prohibition isn't the direct operative factor in the way the kal va'chomer initially suggests.

The crucial turning point is the subsequent verse cited: "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). The Mishnah interprets this verse to mean that with regard to animal tithe, "all animals that are included in the term flock are one species." This is the operative principle that overrides the kilayim logic. The Torah itself, through the inclusive language of "flock," groups sheep and goats together for the purpose of this specific mitzvah. Therefore, they can be tithed from one another.

The distinction between "herd and flock" and "sheep and goats" then becomes clearer. "Herd" ( bakar) typically refers to cattle, while "flock" ( tzon) refers to sheep and goats. The Mishnah is saying that cattle (herd) and sheep/goats (flock) are treated as separate categories for tithing purposes, and you cannot tithe cattle from sheep, or vice versa. However, within the category of "flock," sheep and goats are considered unified. This unity, as established by the Torah's phrasing, allows them to be tithed from each other. The kilayim prohibition, while a general principle of species distinction in other areas of Halakha, is superseded here by a specific Torah designation of unity for the purpose of ma'aser behemah. This demonstrates how specific biblical verses can refine or even appear to contradict general principles, requiring careful textual interpretation to discern the operative law. The Mishnah is teaching us that the definition of "species" for tithing purposes is not based on zoological exactitude but on the language of the Torah itself.

Insight 2: The Geography of Tithe - Distance, Shepherds, and Divine Proximity

The Mishnah then shifts from the classification of animals to the spatial and logistical challenges of tithing, introducing the concept of "joining together" for the purpose of tithe. This is where the practical reality of shepherding and the concept of a cohesive flock come into play.

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.

This passage is rich with implications. The idea that animals "join together" implies a communal or aggregated tithe obligation. It suggests that if animals are sufficiently proximate and under the care of a single shepherd, they are considered a single unit for the purpose of tithing. The measure of sixteen mil (approximately 24 miles, though definitions vary) for a grazing animal's walk defines the radius of a shepherd's effective control. If two separate groups of animals are within this radius of each other, they are considered one flock for tithing.

The scenario of animals being thirty-two mil apart, but with animals "in the middle," is particularly illuminating. This means that while Group A and Group B are too far apart (16 mil + 16 mil = 32 mil), if there's Group C situated halfway between them (16 mil from A, 16 mil from B), then all three groups effectively become one titheable unit. This illustrates a principle of contiguity and shared oversight. The shepherd's ability to traverse the distance and maintain oversight is the linchpin. The introduction of Rabbi Meir's opinion about the Jordan River, which "divides between animals on two sides of the river, even if the distance between them is minimal," presents a fascinating counterpoint. Here, a natural geographic barrier, even if the animals are close, can prevent them from being considered a single unit for tithing. This highlights that while the shepherd's practical reach is the primary measure, absolute geographic separation can override proximity. It suggests a tension between the human element of shepherding and the divine element of geographic demarcations. The Mishnah is subtly weaving together practical pastoral concerns with the abstract requirements of sacred law, acknowledging that the landscape itself can influence religious obligation. The concept of "joining together" also hints at the communal aspect of this mitzvah; it's not just about individual animals but about the collective livestock under a shepherd's care.

Insight 3: Exemptions and the Nature of Ownership - Who Bears the Burden?

The Mishnah then moves to a series of exemptions from the obligation of animal tithe, which shed light on the underlying principles of ownership and responsibility.

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.

The exemptions for purchased or gifted animals are straightforward: the obligation follows the original owner, not the recipient, unless specific conditions are met. The more complex discussion revolves around brothers and partners, particularly in the context of inheritance. The core principle here seems to be a form of equitable distribution of financial obligations related to the Temple and its service.

The bakalbon, or premium, is an additional payment associated with the half-shekel offering. The Mishnah establishes a correlation: if you are obligated to pay the bakalbon, you are exempt from animal tithe, and vice versa. This suggests that these two financial obligations were seen as somewhat interchangeable or that the community sought to avoid double-burdening individuals with similar Temple-related dues. The distinction between acquiring animals "from the possession of their father's house" and other forms of acquisition for brothers who are partners is crucial. If they inherit animals directly from the father's established estate, they are obligated to tithe. However, if they divide the inheritance and then form a new partnership, they are obligated for the bakalbon and exempt from animal tithe. This implies that the initial acquisition from the father's estate carries the tithe obligation, perhaps because it represents the continuation of the father's original livestock holding. However, re-entering a partnership after division creates a new financial entity, and the obligation shifts to the bakalbon. This intricate interplay between inheritance, partnership, and the timing of acquisition demonstrates a sophisticated legal framework for managing communal and individual financial responsibilities. It's not just about who owns the animals, but about the nature and origin of that ownership and how it relates to other financial obligations to the sacred economy.

Two Angles

Angle 1: Rashi - The Literal Text and the Spirit of Tithe

Rashi, as is his hallmark, approaches the Mishnah with a strong emphasis on the literal meaning of the text and the underlying spirit of the mitzvah. When Rashi explains the geographical aspect of ma'aser behemah, he focuses on the practicalities of shepherding and the definition of a cohesive flock. Regarding the sixteen mil radius, he understands it as the maximum distance a shepherd can effectively manage his flock while grazing. The concept of "joining together" animals that are within this range is thus a direct reflection of their shared oversight and communal identity as a single pastoral unit.

When Rashi explains the exemption for purchased or gifted animals, he grounds it in the idea of the original owner's responsibility. The mitzvah is tied to the initial ownership and the ongoing process of raising and tending the animals. Once an animal is transferred, the responsibility, and thus the tithe obligation, transfers with it, unless the transfer itself signifies a change in the nature of the obligation, as seen with the brothers and partners.

Rashi's explanation of the complex scenario involving brothers and partners hinges on the idea of distinct financial statuses. He interprets the bakalbon and animal tithe as parallel obligations. If one is exempt from one, they are obligated in the other, suggesting a balancing act within the community's financial contributions to the Temple. The critical distinction for brothers acquiring from their father's house lies in the direct continuation of the father's established estate. This implies that the tithe obligation is tied to the ongoing management of the father's original assets. If they divide and then recombine, they are essentially forming a new financial entity, and the obligation shifts. Rashi's approach is characterized by clarity and a deep respect for the stated law, always seeking to connect the practicalities of life with the divine commandments. He clarifies the mechanics of the law with precision, ensuring that the reader understands the "how" and "why" based on the explicit wording of the Mishnah and its supporting verses.

Angle 2: Ramban - The Underlying Rationale and the Ethical Dimension

Nachmanides (Ramban), while equally committed to the halakha, often delves deeper into the underlying reasons ( ta'amim) and ethical implications of the commandments. When discussing the geographical limits of tithing, Ramban would likely emphasize the concept of unity and community. The sixteen mil rule isn't just about a shepherd's physical reach; it's about the spiritual and social cohesion of the flock. Animals within this radius are part of the same communal enterprise, sharing the same grazing lands and facing the same dangers. Therefore, their tithe obligation is likewise unified.

Ramban might also interpret the kilayim discussion more broadly. While the Mishnah resolves it based on the Torah's specific language regarding "flock," Ramban could explore the ethical implications of unity and separation. The fact that sheep and goats, which are generally kept separate in a kilayim sense, can be tithed together highlights that for the purpose of divine service, the boundaries can be redefined. This points to a higher unity intended by the mitzvah.

Regarding the exemptions, Ramban would likely focus on the concept of "burden" and "ownership." The exemption for purchased or gifted animals underscores that the obligation is intrinsically linked to the process of raising and tending the animals from their inception. The recipient of a gift or a purchaser has not undertaken that full journey. For brothers and partners, Ramban would emphasize the principle of avoiding undue hardship. The interchangeable nature of the bakalbon and animal tithe serves to distribute the financial burden equitably within the community, ensuring that no one individual or group is disproportionately taxed. He would likely see the distinction between inheriting from the father's estate versus re-forming a partnership as a matter of established obligation versus newly created financial arrangements, reflecting a concern for fairness and the practical realities of family and business structures. Ramban’s interpretation often brings out the deeper ethical and theological underpinnings, revealing the mitzvah as not merely a ritual but a reflection of divine justice and communal responsibility.

Practice Implication

This Mishnah profoundly shapes how we understand communal responsibility and the distribution of shared obligations, particularly in the context of religious observance. Consider the modern application of communal tithing or fundraising for religious institutions. The principle of "joining together" animals that are within a certain distance and under a single shepherd's care suggests that shared resources and proximity can create a unified obligation.

Scenario: A Jewish Community Farm

Imagine a community that decides to establish a small farm or agricultural project to provide fresh produce for its members, with a portion designated for charity or for supporting the community's religious needs (analogous to the Levites). The Mishnah's principles of ma'aser behemah offer a framework for how to approach the "tithe" from this farm.

• Defining the "Flock": If the farm has different plots of land or different types of produce, the Mishnah's distinction between "herd and flock" and "sheep and goats" can inform how to categorize these. For instance, if the community grows both grains (analogous to "herd") and vegetables (analogous to "flock"), the Mishnah suggests these might be treated as distinct categories for tithing, not to be tithed from one another. However, if within the vegetable produce, they grow different types of leafy greens, these might be considered within a unified "flock" and thus tithed together, drawing a parallel to sheep and goats being tithed from one another because the Torah groups them under "flock."
• The "Shepherd" and "Distance": The concept of the shepherd and the sixteen mil radius becomes a metaphor for management and proximity. If different sections of the farm are managed by different individuals or are geographically distant, the Mishnah suggests they might be considered separate titheable units. However, if there's a central management structure and the different sections are "close enough" in terms of oversight and resource sharing (analogous to the shepherd being able to manage them), they could be considered a single unit for the purpose of calculating the community's tithe. If there's a "middle ground" of shared resources or management that connects otherwise separate sections, the Mishnah implies they can be brought together for tithing.
• Exemptions and Ownership: The exemptions for purchased or gifted animals, and the intricate rules for brothers and partners, highlight how ownership and the process of acquisition influence obligation. In a communal farm, this could translate to how donations of produce or land are treated. If a donor gives produce, is that considered like a "gift" to the community farm, thus exempting the farm from tithing that specific donation? Or is it acquired by the community's ongoing management and therefore subject to tithe? The Mishnah's emphasis on the process of acquisition and the nature of the relationship to the asset (e.g., inheriting from the father's house versus re-entering a partnership) suggests that the community needs to establish clear guidelines for how donated or acquired resources are incorporated into the communal "flock" and subject to its tithe obligations.

This Mishnah, therefore, encourages a thoughtful consideration of how communal resources are managed, how obligations are shared, and how definitions of unity and separation impact our collective responsibilities to God and community. It moves beyond a simple percentage calculation to a nuanced understanding of stewardship and shared burden.

Chevruta Mini

Question 1: The Paradox of Kilayim and Unity

The Mishnah presents a seeming paradox: the Torah prohibits mating diverse kinds (sheep and goats) due to their inherent distinction, yet for the purpose of animal tithe, it groups them together under the term "flock," allowing them to be tithed from one another. This suggests that for specific mitzvot, the Torah can redefine categories of unity and separation beyond natural or biological distinctions. What does this teach us about the nature of halakhic categories? Does it imply that the purpose of the mitzvah itself can dictate how we perceive the "sameness" or "difference" of things, or is there a deeper theological reason for this specific grouping of sheep and goats?

Question 2: The Shepherd's Radius and Divine Oversight

The sixteen mil radius for a shepherd's effective control, and Rabbi Meir's view on the Jordan River as a dividing line, illustrate how both human agency (shepherding) and geographic realities (rivers) influence the application of divine law. Where does the ultimate authority lie in determining what constitutes a unified titheable unit? Is it primarily the practical ability of the human overseer, or are there inherent divine boundaries that supersede human capacity? How does this tension between human action and divine decree play out in other areas of Jewish law concerning boundaries and communal responsibility?

Takeaway

The Mishnah reveals that ma'aser behemah is not just about counting animals, but about understanding how proximity, ownership, and Torah-defined unity shape our collective obligations.