In the last Mishnah, we spoke about a situation where a sheep gives birth to twins, and we don’t know which one is the Bechor (firstborn). In this Mishnah, we’ll start by talking about two different sheep who give birth, and we don’t know which one was born from which mother. The Mishnah says that we have two sheep that never gave birth previously, and they gave birth to two males, one male each. We don’t know which one was connected to which mother. The owner has to give both animals to the Kohen (priest), because they’re both obviously the firstborn. This is a simple case.
The two sheep gave birth, one to a male and one to a female, and they had never given birth before. So the male is definitely a Bechor. Whichever sheep gave birth to the male, that male is definitely a Bechor, regardless of which mother gave birth to it. The male animal is given to the Kohen. It doesn’t matter who the mother is; it obviously is a Bechor. These are two simple, obvious rulings. We’re only giving these cases to give a full picture of all possible situations.
Shnei zecharim u'nekeva. If the two sheep gave birth to two males and a female, that means one sheep gave birth to one baby and the other gave birth to two. We don’t know which offspring was born from which mother. Echad lo v'echad laKohen. The owner keeps one of the males for himself and gives the other one to the Kohen. In this case, there was definitely one male firstborn. We have two males here and one female, and two sheep that gave birth. So one of these males is definitely a Bechor. The second one also possibly could be a Bechor, since one mother gave birth to two. It’s possible that the second mother gave birth to a Zachar first and then a nekeva. So it’s possible that there are two Bechor here, but it’s also possible that the female was born first from that second sheep, and the owner would not be obligated to give anything because there’s no Bechor in that second case.
Since we have this uncertainty, we use the rule we learned previously, hamotzi me-chaveiro alav hare'ayah. The Kohen wants to take the sheep. The burden of proof is on him to prove that it’s a Bechor if he wants to remove it from the owner’s possession. Since he can’t do that, he can’t know with certainty that the animal is a Bechor, so the owner keeps the animal. But there is a Safek, there is a possibility that it is a Bechor. So we have to be stringent when we have a doubt with this type of prohibition: you’re not allowed to slaughter the Bechor until it develops a blemish. You have to let it graze until it develops a blemish. Then the owner could slaughter it.
Rabbi Tarfon omer, haKohen borer lo et hayafeh. Like in the last case, Rabbi Tarfon says: Which of these two animals is given to the Kohen? Which of the two male sheep? Rabbi Tarfon says, go ahead and choose the better of the two males. We assume that the better male was born by itself and is a Bechor. Rabbi Tarfon says that an animal that is alone and developing in its mother’s womb without a twin is probably going to be healthier and bigger, so we can assume that the healthier of the two males is the one that was a Bechor, and the smaller one was born as a twin.
Rabbi Akiva will disagree, as he did in the last case. He’ll disagree here as well. He’s going to say that we don’t automatically say that the stronger, bigger animal is the Bechor. He’s going to explain how we decide which one each person receives.
Rabbi Akiva omer, meshamnin beineihen. Rabbi Akiva says that we first take the two animals and analyze which one is the better animal. Which of the two is the higher-quality animal? We’re unsure whether each one of them belongs to the Kohen, but we definitely know that at least the value of the lower-level animal belongs to the Kohen. The Kohen can’t prove that the better animal is the Bechor. So it remains in the owner’s possession, and the Kohen would receive the inferior one. That is definite: the value of that lower-level animal definitely belongs to him.
As in the example we gave previously, if you have an animal that’s worth 100 and one worth 120, we know that at least 100 of that 120 belongs to the Kohen, because he definitely has at least that. The Machloket, the back and forth, is about that last 20, and the Kohen is not allowed to take it because hamotzi me-chaveiro alav hare'ayah: the burden of proof is on him to remove that last 20 from the person who has possession. The second animal, the one that is with the owner, grazes until it develops a blemish. Then the owner is allowed to slaughter it and eat it. Even though the owner is allowed to keep the animal, there is still a possibility that it is a Bechor. So the owner has to wait for it to develop a blemish, and only then could he eat from it.
V'chayav b'matanot. The owner is obligated to give the gifts of the animal he keeps, the different parts of the animal. Because if the animal is a Bechor, he has to give it to the Kohen. And if not—let’s say it wasn’t a Bechor—he would have to at least give the parts of the body of a Hedyot, of like a regular animal that he would have, an animal that he would have to give over. So he definitely has to give over the matanot.
But Rabbi Yose is going to disagree. Rabbi Yose says that the owner does not have to give over the gifts from this animal. According to him, if the animal in the owner’s possession is a Bechor, then it’s as if he gave it to the Kohen, the Kohen then gave it back to him, and he gave the other animal in return for it. So the owner would have no obligation to give the entire animal to the Kohen. But he’s also not obligated to give the gifts from this animal that’s in his possession, because even if it was the Bechor, then he wouldn’t be giving over the gifts, because the Bechor is exempt in that type of case.
So there’s a Safek, there’s a doubt, and he would not have to give it over because, if it was the Bechor, again, it’s as if he already gave that to the owner, and then the owner gave it back to him. So he would be exempt in that case. If he really was obligated to give it to the Kohen, he would have to give it to him. But since we have a Safek, we say that, for the Kohen, the burden of proof is on him to show that the gifts are his.
Like in the last Mishnah, we’re going to talk about a situation where one of the male animals died. One of them died. It says the remaining male, because we don't know if it is a Bechor or not. We assume the better animal was born, says Rabbi Tarfon earlier, but we also learned that Rabbi Tarfon changed his opinion and decided that it's unclear which animal was born as the Bechor, and therefore the remaining animal is divided out of doubt.
Rabbi Akiva says that the burden of proof is on the one who wants to take money from his friend. So the Kohen has to prove that the remaining male, the one that didn’t die, is his. He doesn’t have the ability to do that, so the entire animal is given to the owner.
Till now, we talked about two sheep that gave birth to two males and one female. Now we’ll talk about cases where the sheep gave birth to two females. Two sheep gave birth to two females and one male, so one gave birth to two animals and one gave birth to one animal. Or they gave birth to two males and two females, with each giving birth to two animals. We don’t know which offspring was born from which mother.
There’s nothing here for the Kohen. It’s possible that the two females are the firstborns of the two sheep, and that there’s no male firstborn. Of course, there’s always the possibility that there are two male firstborns or one male firstborn, but since it’s possible here that there’s no male firstborn, the owner is not obligated to give any of the animals to the Kohen. In these cases, since it’s possible we have two females who were born first, there would be no Bechor. So the owner is allowed to keep both animals.
Here as well, since there’s a Safek, there’s a doubt: maybe the two Zachar are the Bechor. We have to deal with it strictly, and you’re not allowed to slaughter it until it eventually develops a blemish. Then the individual is allowed to slaughter it.