SALT - Friday, 3 Shevat 5778 - January 19, 2018

  • Rav David Silverberg
            Yesterday, we discussed the Torah’s command toward the end of Parashat Bo (13:13) that a peter chamor – a male firstborn donkey – must be either redeemed, through the payment of a sheep to a kohen, or killed.  The Mishna in Masekhet Bekhorot (9a) addresses the case of a donkey whose status is uncertain, as it may or may not be its mother’s firstborn.  (The case described by the Mishna is one of a female donkey whose first offspring are twins, a male and female, and it is uncertain whether the male was born first, and is thus subject to the law of peter chamor, or was born second.)  In such a case, the Mishna rules, the owner must designate a sheep for the “redemption” of the donkey, in case it is a firstborn, but he does not have to give the sheep to a kohen.
            The Gemara (9a) explains that the designation of a sheep is required in order for the donkey to be permitted for use.  According to Rabbi Yehuda, whose position is accepted as Halakha, a peter chamor is considered sacred and thus forbidden for personal use until it is redeemed through a sheep.  Therefore, if a donkey’s status is uncertain, one must refrain from using the animal until it is redeemed, in case it is in fact a peter chamor and thus forbidden for use.  However, once a sheep has been designated for the donkey’s redemption, the owner is not required to give the sheep to a kohen, since it is questionable whether the kohen in fact deserves the sheep.  The famous principle of “ha-motzi mei-chaveiro alav ha-re’aya” (the rough halakhic equivalent of the modern-day principle of “possession is nine-tenths of the law”) establishes that whenever there is some question surrounding the rights to money or property, the one who currently has the money or property in his possession may keep it until the plaintiff can prove that it belongs to him.  In the case of a questionable peter chamor, the kohen has no way of proving that he has rights to the sheep designated for redemption, given the donkey’s uncertain status, and thus the owner may keep the sheep even though it has been declared the “redemption” for the donkey.
            Rabbi Shimon, as the Gemara cites, disputes Rabbi Yehuda’s position, and maintains that a firstborn donkey is not forbidden for use before its redemption.  Although the Torah commands that it must be redeemed, this obligation has no bearing upon the donkey’s status in the interim.  The owner bears a religious obligation to redeem his donkey, but the donkey is entirely permissible for use even before this requirement is fulfilled.  The Gemara comments that the Mishna’s ruling, requiring the designation of a sheep for the redemption of a questionable peter chamor, follows Rabbi Yehuda’s opinion.  According to Rabbi Shimon, there is no need to even designate a sheep in such a case.  In his view, the redemption of a peter chamor entails nothing more than giving a sheep to a kohen; it has no other halakhic significance, since the donkey is entirely permissible even without redemption.  Therefore, since the owner of a questionable peter chamor cannot be forced to pay a sheep to the kohen until it is proven that the donkey is indeed a firstborn, there is no need to do anything, and he does not even have to designate a sheep.
            The question arises as to why, according to Rabbi Shimon, the owner would not be required to designate a sheep to avoid having to kill the donkey.  After all, the Torah explicitly commands that one must either redeem or kill a firstborn donkey.  Seemingly, then, in the case of a questionable peter chamor, the owner should be required to designate a sheep for the donkey’s redemption to be absolved of the alternative – killing the donkey.
            The Minchat Chinukh (23) offers a clever explanation for why the Gemara assumed that Rabbi Shimon would not require redeeming the donkey in such a case.  Throughout the Talmud, the Gemara attributes to the Rabbi Shimon the position of “darshinan ta’ama di-kra” – the reasons underlying mitzvot affect their halakhic parameters.  According to Rabbi Shimon, when determining the details and particulars of a given mitzva, its intended purpose needs to be taken into account.  If so, the Minchat Chinukh writes, then we can easily understand why the owner of a questionable peter chamor would not be required to kill the donkey if he does not designate a sheep for its redemption.  As we saw yesterday, the Gemara (Bekhorot 10b) explains the requirement to kill a peter chamor as a penalty levied against the owner for refusing to redeem it by paying a sheep to a kohen.  In the case of a questionable peter chamor, the Minchat Chinukh notes, the owner has no legal requirement to make this payment to a kohen, as his financial obligation is uncertain.  As such, he should not be penalized by being required to kill the donkey.  Since the requirement to kill the donkey is rooted in the Torah’s desire to penalize the owner, and this purpose, in Rabbi Shimon’s view, affects the practical halakhic details of the mitzva, the requirement does not apply when the owner has a valid reason for not paying a sheep for the donkey’s redemption.