Today's study of the Talmud Bavli, tractate Bechorot, ninth chapter, focuses on the laws of animal tithes, known as Ma'aser Behema. Let's begin with a review of the Torah's law: a person places their cattle in a pen with a single door. As each animal passes through, the tenth one is marked with a red dye and becomes Ma'aser. Unlike other tithes, Ma'aser Behema is not given to a Kohen; a portion is offered as a sacrifice, and the remainder is consumed by the owner. Our chapter will delve into the various regulations surrounding this mitzvah.
The Mishnah begins by stating that the law of Ma'aser Behema applies both in the Land of Israel and outside of it, and it remains applicable even when the Beit HaMikdash is not standing. This law applies to ordinary animals. The Gemara will later deem it obvious that consecrated animals are exempt, as their status as sacred offerings would preclude them from being designated as Ma'aser. The Torah specifies that Ma'aser Behema applies to cattle (Bakar) and sheep (Tzon). The term Tzon encompasses both male sheep (Kvasim) and goats (Izim), as we will see. However, one may not take Ma'aser from one species to cover another. While the Torah groups Bakar and Tzon (which includes Izim) together, you cannot designate Ma'aser from cattle for sheep, or vice versa. Nevertheless, when it comes to Kvasim and Izim, they are considered a single species under the umbrella of Tzon, allowing one to take Ma'aser from one to cover the other.
Regarding animals from different years, the Mishnah states that one cannot take Ma'aser from this year's flock to cover last year's. If you failed to take Ma'aser from last year's animals, you must take it specifically from that older flock, even if it has aged. Each year's animals must have their Ma'aser taken separately; you cannot use this year's Ma'aser to fulfill the obligation for last year's. One might have thought this was permissible, as there is no prohibition of crossbreeding (Kilayim) between animals of the same species from different years. The age difference is irrelevant in that regard. However, the Mishnah explicitly rules against it. This contrasts with the rule for different species, where it is certainly forbidden to take Ma'aser from one to cover the other. The Gemara will explain that the term Tzon, encompassing various types of sheep, implies they are all considered one for the purpose of Ma'aser, allowing Kvasim and Izim to cover each other. However, this does not extend to different years.
The Gemara then asks whether our Mishnah aligns with the view of Rabbi Akiva. A Braita states that Rabbi Akiva taught: "Could a person take Ma'aser Behema from outside the Land of Israel (Chutz La'aretz) and bring it as a sacrifice?" The verse states, "And you shall bring there your burnt offerings and your sacrifices and your tithes (Ma'aserotechem)." The plural form "Ma'aserot" refers to two types of tithes: Ma'aser Behema and Ma'aser Dagan (grain tithe). The verse implies that just as Ma'aser Dagan is taken only in the place where it is grown (i.e., the Land of Israel), so too Ma'aser Behema must be taken only in the Land of Israel. Since Ma'aser Dagan is not taken in Chutz La'aretz (as land-dependent mitzvot apply only in the Land), Rabbi Akiva concludes that Ma'aser Behema also applies only in the Land of Israel. Our Mishnah, however, states that Ma'aser Behema applies even in Chutz La'aretz, seemingly contradicting Rabbi Akiva.
The Gemara resolves this by suggesting that even Rabbi Akiva could agree with our Mishnah. The distinction lies between consecrating an animal (making it Kodesh) and bringing it as a sacrifice (Korban). Rabbi Akiva's ruling that Ma'aser Behema applies only in the Land of Israel refers specifically to bringing it as a Korban. However, merely consecrating it, even in Chutz La'aretz, is permissible. Such an animal, once consecrated, becomes sacred (Kadosh) and cannot be used until it develops a blemish, after which its owners may consume it. The Braita cited earlier, with its reference to bringing Korbanot, was indeed discussing the sacrificial aspect. Therefore, Rabbi Akiva would agree that an animal can become Kadosh through Ma'aser Behema even in Chutz La'aretz, though it cannot be sacrificed there.
This leads to a practical question: if Ma'aser Behema applies even when the Beit HaMikdash is not standing, why do we not observe it today? We never hear of anyone tithing their animals. The Mishnah explicitly states that a "Yatom" animal (one whose mother died during its birth) cannot be designated as Ma'aser. The concern is that if there is a Yatom in the pen, and it happens to be the tenth animal, it is not valid Ma'aser. If one mistakenly counts it as Ma'aser, the next animal, which would have been the eleventh, is the true tenth, but it will not be treated as such, leading to a problem where one might benefit from an animal that should have been consecrated. The Gemara initially asks why this concern would apply only "Bizman Hazeh" (in our times) and not during the time of the Beit HaMikdash. The answer proposed is that in earlier times, an announcement could be made by the rabbis to clarify the law regarding a Yatom, thus avoiding confusion. However, the Gemara rejects this, stating that such an announcement could still be made today. Therefore, the Yatom issue is not the primary reason for the cessation of Ma'aser Behema.
The true reason, the Gemara explains, is a rabbinic decree (Takana). The rabbis were concerned about the potential for people to benefit from a consecrated animal before it develops a blemish. Since a Ma'aser Behema animal is Kadosh and forbidden for use until it is blemished, and this process can take months, there was a high likelihood that people would improperly benefit from it. Therefore, the rabbis, exercising their authority, nullified this mitzvah to prevent this transgression (Takala). We find a similar concern regarding other consecrated items today. For example, if one consecrates the value of a person (Erech), or dedicates items (Hekdesh) or vows (Nedarim) to the Beit HaMikdash, these acts are not performed today. If one were to do so, the items would be "uprooted" (Ikur). For animals, this means locking them in a room until they die naturally. For produce, clothes, or vessels, they are left to spoil. For metals and money, they are thrown into the Dead Sea. All these measures are designed to prevent people from benefiting from consecrated items in an era when they cannot be used for their intended purpose in the Beit HaMikdash. This demonstrates the rabbinic concern about Takala, leading to the suspension of Ma'aser Behema.
A question arises: why was Ma'aser Behema suspended due to this concern, but the law of Bechor (firstborn animal) still applies today? Bechor animals also become Kadosh and cannot be used until blemished, presenting the same potential for Takala. The Gemara answers that the consecration of a Bechor is not an act initiated by us; it is inherently Kadosh from birth. Ma'aser Behema, however, is an act we perform to designate the animal as Ma'aser. Since we initiate the consecration for Ma'aser Behema, the rabbis have the power to suspend it. But a Bechor is Kadosh automatically, so the rabbis cannot nullify its inherent sanctity.
The Gemara then introduces a way to bypass the issue of Bechor: if a non-Jew (Goy) is a partner in the ownership of the mother animal, the offspring is not a Bechor. So, one could sell a small part of the mother to a Goy to avoid the Bechor status. The Gemara also cites Rabbi Yehuda, who states that it is permissible to insert one's hand into the womb and intentionally blemish the fetus before birth. This way, the animal is born with a blemish, and while it still has the sanctity of a Bechor, it cannot be offered on the altar and can be consumed by the Kohen after its blemish is verified. This is considered a better option than selling part of the mother, as it preserves the Bechor's sanctity, even if it cannot be sacrificed. If such an option exists for Bechor, why couldn't the rabbis have instituted a similar measure for Ma'aser Behema—to intentionally blemish the Ma'aser animal? The Gemara responds that for Ma'aser Behema, one does not know which animal will be the tenth until it passes through the gate. Therefore, one cannot pre-emptively blemish it. One might suggest blemishing all the animals in the pen. However, the Gemara rejects this, stating that it is impractical. If everyone blemished all their animals, when the Beit HaMikdash is rebuilt, there would be no unblemished animals available for Korbanot. This concern does not apply to Bechor, as only one animal per mother is a Bechor, leaving other animals available for Korbanot. Even if one argues that animals acquired through purchase or as gifts are exempt from Ma'aser Behema and would therefore not be blemished, the Gemara notes that finding a perfectly unblemished animal for the altar is difficult, as even slight blemishes (e.g., a cataract) disqualify an animal. Between intentionally blemished animals and those with natural, minor blemishes, it would be extremely hard to find a kosher animal for the altar. Thus, the rabbinic decree to suspend Ma'aser Behema is justified.
The Mishnah also states that Ma'aser Behema applies only to ordinary animals, not to consecrated ones (Hekdesh). The Gemara asks why this needs to be stated, as consecrated animals are not one's own property; they belong to God, so why would one think they are subject to Ma'aser Behema? The Gemara explains that the Mishnah refers to "Kadashim Kalim," which are lesser holy offerings. According to Rebbe Yosef HaGlili, Kadashim Kalim, such as peace offerings (Korban Shalaim), are considered "Mamon Ba'alim" (owner's property) in certain respects. For example, if someone falsely swears that they did not receive a Korban Shalaim entrusted to them, and it is later discovered they did, they must pay the principal plus an additional fifth (Kerem V'homesh), which is typically only paid for false oaths regarding monetary claims. This indicates that Rebbe Yosef HaGlili views Shalaim as having an element of the owner's property. One might have thought that since Shalaim are considered Mamon Ba'alim for the purpose of oaths, they would also be subject to Ma'aser Behema. The Mishnah comes to teach us that this is not the case.
The Gemara further challenges this: perhaps Ma'aser Behema does apply to Shalaim according to Rebbe Yosef HaGlili? The Gemara responds by citing the verse regarding Ma'aser Behema: "It shall be holy (Yiyeh Kodesh)." This implies that the animal becomes Kodesh through Ma'aser. However, an animal that is already Kodesh (like a Shalaim) cannot acquire another layer of sanctity. How can the sanctity of Ma'aser apply to an animal that already possesses a higher sanctity? The Gemara argues that even a weak sanctity cannot be added to a stronger one. In this case, the sanctity of Shalaim is strong, and Ma'aser Behema's sanctity is weaker, so it certainly cannot be added. The Gemara brings a proof: there are two types of consecration—Kiddushat Mizbeach (sanctity for the altar) and Kiddushat Bedek HaBayit (sanctity for the Temple treasury). Something consecrated with Kiddushat Mizbeach cannot then be consecrated with Kiddushat Bedek HaBayit, and vice versa. This demonstrates that once an item has one type of sanctity, another cannot be added. Therefore, an animal that is already Kadosh as a Shalaim cannot become Ma'aser Behema.
The Gemara clarifies that while one cannot add a new sanctity, one can "enhance" (Ilui) an existing one. For example, if an animal is consecrated for the altar, and one also wishes to donate its monetary value to the Temple treasury, one pays the value that still pertains to the owner (e.g., the benefit a Kohen might pay an Israelite for the right to offer the Korban). However, this is not adding a new sanctity, but rather dealing with the residual monetary value. The core principle remains: once Kadosh, another sanctity cannot be added. So, why would a verse be needed to state that an already Kodesh animal cannot become Ma'aser Behema? It should be obvious. The Gemara explains that one might have thought that Ma'aser Behema is different. While not every animal is destined to be a Korban Olah (burnt offering), every animal in a flock is potentially Ma'aser. Since every animal could potentially become Ma'aser, one might have thought that even if an animal already has a lesser sanctity (like Bedek HaBayit), the sanctity of Ma'aser could still be applied to it, as if it was already "standing" to be Ma'aser. Therefore, the verse "Yiyeh Kodesh" is needed to teach us that Ma'aser applies only to animals that were not Kodesh at all previously.
The Gemara then asks about the practical difference (Nafka Mina) if Ma'aser Behema could be added to an already consecrated animal. The difference is that a regular Korban can be redeemed (Pidyon) if it develops a blemish. However, Ma'aser Behema cannot be redeemed. If Ma'aser Behema sanctity could be added to a regular Korban, it would change its halachic status, making it irredeemable. This demonstrates that adding Ma'aser Behema sanctity has significant halachic ramifications.
Returning to the Mishnah's statement that one cannot take Ma'aser from one year's animals to cover another's, the Gemara seeks the source for this rule. It proposes a Kal Va'Chomer (a fortiori argument): if one cannot crossbreed animals of different species (Kilayim), yet one can still take Ma'aser from Kvasim and Izim (which are distinct but considered one species for Ma'aser), then surely for animals of the same species from different years (where there is no Kilayim prohibition), one should be able to take Ma'aser from one year to the next. This Kal Va'Chomer would suggest the opposite of the Mishnah's ruling. The Gemara rejects this, stating that the rule is a "Gezeirat Katuv" (a biblical decree) derived from the verse "Aser Te'aser" (you shall surely tithe). This phrase refers to two types of tithes: Ma'aser Behema and Ma'aser Dagan. The verse compares Ma'aser Behema to Ma'aser Dagan. Just as Ma'aser Dagan must be taken "Shana B'Shana" (year by year), meaning one cannot take from one year's grain to cover another's, so too Ma'aser Behema must be taken year by year.
The Gemara then asks: if the comparison to Ma'aser Dagan teaches that one cannot take Ma'aser from one year to the next, why doesn't it also teach that one cannot take Ma'aser from different types of Tzon (e.g., Kvasim and Izim), just as one cannot take Ma'aser Dagan from one type of grain to cover another? The answer is that the word "Tzon" itself includes Kvasim and Izim, indicating they are considered one for Ma'aser. This creates a tension: the comparison to Ma'aser Dagan implies separation by year, while the term Tzon implies inclusion of different types of sheep. The Gemara concludes that the verse explicitly states "Shana B'Shana," making the year-by-year distinction explicit for Ma'aser Dagan, and thus by comparison, for Ma'aser Behema. The term "Tzon" then serves to include Kvasim and Izim within a single category, allowing Ma'aser to be taken between them. Thus, the Torah itself provides the basis for these distinctions.