Mishnah Temurah 6:3-4

Sugya Map

• Issue: The scope and nature of mechir kelev (price of a dog) as a prohibition for altar sacrifice, particularly in cases of mixed assets.
• Nafka Mina(s): Application of birerah (retrospective clarification) and bittul b'rov (nullification by majority) to issurei mizbeiach (altar prohibitions).
• Primary Sources: Mishnah Temurah 6:3-4[^1]; Devarim 23:19[^2].

Text Snapshot

וכן שני שותפין שחלקו אחד נוטל עשרה ואחד נטל תשעה וכלב שכנגד הכלב אסורין ותשעה הכלב מותרין[^3] Translation: And likewise, in the case of two partners who divided [their common property], which included nineteen lambs and one dog, and one took ten [lambs] and the other one took nine [lambs] and a dog, sacrifice of the ten lambs taken by the partner in exchange for the dog is prohibited, and sacrifice of the nine lambs that were taken by the partner with the dog is permitted. Dikduk/Leshon Nuance: The phrasing "שכנגד הכלב אסורין" implies a direct, albeit non-specific, correlation of prohibition to the dog's value. The Mishnah doesn't specify which lamb is the mechir kelev, leading to the birerah discussion.

Readings

Rambam's Proportionality

Rambam explains that the value of the dog is proportionally distributed among the ten lambs received in exchange. Therefore, a portion of the issur inheres in each of the ten, rendering them all prohibited, unless the dog's value was less than or equal to one lamb's[^4]. This suggests a diffusion of the issur rather than a single, identifiable prohibited item.

Tosafot Yom Tov's Birerah Distinction

Tosafot Yom Tov, citing his Rebbe R. Meir, addresses the Gemara's kushya: why not simply designate one lamb as the mechir kelev and permit the remaining nine through birerah? He posits a crucial distinction: birerah applies when the issur "comes into being" (nolad ha'issur) within the mixture itself, as is the case here where the "price of the dog" is only defined by the division. Conversely, birerah does not apply if a pre-existing issur was simply mixed with heter[^5].

Friction

The most potent kushya here, articulated by the Gemara as cited by Tosafot Yom Tov, is the intuitive appeal of birerah: "ליפוק חד להדי כלבא והנך כולהו לישתרו" – let one lamb be retrospectively identified as the mechir kelev, and the other nine be permitted[^6]. The terutz offered by TYT's Rebbe provides an elegant solution by distinguishing between an issur that pre-exists the mixture versus one that arises from the mixture. In our case, the "price of the dog" only crystallizes upon the division, making it a "newly born" issur within the context of the mixture, thus amenable to birerah (according to those who hold birerah applies even d'Oraita in such cases).

Intertext

The broader sugya of birerah is contentious, with Tanaim and Amoraim debating its applicability, especially concerning d'Oraita prohibitions[^7]. This Mishnah's case, as interpreted by TYT, suggests a unique scenario where the very definition of the issur is tied to the act of mixing or division, potentially sidestepping the usual objections to birerah in Torah law.

Psak/Practice

While the general halacha remains that ein birerah b'd'Oraita (there is no birerah in Torah law), the chiddush here offers a heuristic for understanding specific instances where a safek (doubt) arises from a process rather than from the identity of a pre-existing item. This might inform scenarios where an item's status changes or is defined through an action involving a mixture.

Takeaway

The Mishnah, through its birerah friction, subtly implies that the genesis of an issur can dictate how halacha approaches its identification within a mixture, even for issurei mizbeiach.

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[^1]: Mishnah Temurah 6:3-4. [^2]: Devarim 23:19. [^3]: Mishnah Temurah 6:3. [^4]: Rambam, Peirush haMishnayot, Temurah 6:3 s.v. "איזהו מחיר כלב האומר לחבירו". [^5]: Tosafot Yom Tov, Temurah 6:3 s.v. "שכנגד הכלב אסורים". [^6]: Tosafot Yom Tov, Temurah 6:3 s.v. "שכנגד הכלב אסורים" (quoting the Gemara's kushya). [^7]: E.g., Gittin 25a, Kiddushin 63a, Bechorot 57a.