Shiur #18: Minyan Ha-raui

  • Rav Yair Kahn

Sources:

1.  Gemara 6b "Amar lei Rav Chananya ... ve-hen shelo."

2.  Tosafot s.v. Le-potro, Ritva s.v. Hadar.

3.  Mishna Bekhorot 58b, Rashi (mi-ktav yad) s.v. Kafatz.

4.  Bekhorot 59a "amar Rava ... minyan haraui poter"

5.  Mishna Nedarim 18b, Tosafot s.v. Ve-im shel ma'aser.

 

Questions:

1.  What is the explanation for Rava's halakha "minyan ha-raui poter?"

2.  Why, according to Rava, is the tenth animal considered as ma'aser automatically?

3.  Based upon what factor is an animal categorized as ma'aser beheima?

4.  Does this correspond to the method through which the status of ma'aser dagan is attained?

5.  Why is ma'aser beheima considered "davar ha-nadur?"

 

1. Ma'aser Dagan and Ma'aser Beheima

            The laws of ma'aser beheima obligate one to set aside one of ten animals born to his flock in any given year and to offer it as a sacrifice. After sprinkling the blood and burning certain select portions on the altar, the rest of the meat is eaten in Yerushalayim by the owner of the flock. At first glance, this seems a close parallel to ma'aser sheni, which is a tenth taken from agricultural produce and eaten by the owner in Yerushalayim. In the same vein, we might suggest that bikkurim (the first fruits – which are brought to the altar and given to kohanim) are the agricultural counterpart to bekhor beheima (the first born animal – which is given to kohanim to bring as a sacrifice). In this shiur, we will examine the extent of the relationship between these two types of ma'aser; one which relates to farmers, the other to owners of livestock.

2. Counting to Nine

We will begin by contrasting the method of designating the ma'aser. Regarding ma'aser beheima, the specific animals designated as ma'aser beheima must be chosen via a process of counting.  As one enumerates the flock one marks every tenth animal, thus awarding it the status of ma'aser beheima. This process reflects at least a technical difference between this ma'aser and the ma'aser sheni taken from crops.  Regarding the latter, there is no act of counting, rather it is the direct designation of the ma'aser itself, which defines the remainder as non-ma'aser, thereby permitting it. Counting on the other hand, begins with the first nine objects, which are not ma'aser.

Perhaps, this is only a technicality.  On the other hand, this distinction may reflect a basic difference between the two. Regarding ma'aser from crops, there is no independent act capable of defining part of the produce as non-ma'aser. However, regarding ma'aser beheima designated through "minyan" - the counting process, the non-ma'aser animals are separated first, while the status of ma'aser is awarded only upon reaching the tenth animal. 

            The possibility that the counting process of ma'aser beheima actually designates the non-ma'aser animals, hinges upon how we define the halakha of Rava "minyan ha-raui poter" - the process of counting itself exempts from the obligation of ma'aser beheima.  This halakha is limited to a situation in which the initial counting had the potential of reaching ma'aser.  For instance, the gemara in Bekhorot (59b) quotes the following beraita: If one had ten lambs and counted five and one of the remaining lambs subsequently died, the lambs that were counted at the time that all ten animals were alive are exempt, while those not yet counted must be included with another flock that is still obligated in ma'aser beheima. The most obvious explanation is that the counting itself, and not the designation of the ma'aser is the factor which defines the non-ma'aser animals.  Therefore, it is possible to have certain animals established as non-ma'aser, even though ma'aser itself was never actually designated.  According to this understanding, ma'aser beheima regarding this point is radically different than its agricultural counterpart. Regarding the latter, only the ma'aser is designated, while the remainder automatically, by process of elimination is considered non ma'aser. 

There is an argument between the Tana Kama and R. Yossi be-R. Yehuda in the mishna in Bekhorot (58b).  According to R. Yossi be-R. Yehuda, if one has a hundred animals, he can take ten and confer the status of ma'aser beheima on them, without counting. The Tana Kama disagrees. Based on the above, the relationship between agricultural ma'aser and ma'aser beheima may lie at the root of their argument. (See the ensuing gemara - 59a).

            This distinction between ma'aser dagan (ma'aser from crops) and ma'aser beheima may be rooted in an additional distinction. The pre-ma'aser dagan state is known as "tevel," during which everything is prohibited.  Therefore, the act of selecting ma'aser dagan is critical in order to permit the non-ma'aser components.  Regarding ma'aser beheima, there is no tevel state (see Rambam Hilkhot Bekhorot 7:7).  Hence, the act of removing ma'aser beheima is not necessary to permit the non-ma'aser animals.  Therefore, counting alone is a sufficient method to establish certain animals as non-ma'aser.

            However, the problem raised by Tosafot in our sugya (s.v. Le-potro) suggests a different understanding of minyan ha-raui.  Our sugya applies minyan ha-raui to a situation where one of the animals already enumerated as non-ma'aser became mixed up with the part of the flock not yet counted.  Since an animal that was counted cannot be recounted, the mishna in Bekhorot (58b) rules that the entire flock is exempt from counting.  Our sugya raises the option of continuing to count the flock.  Since there are enough animals to reach ma'aser, the animals counted as non-ma'aser will become exempt through the halakha of minyan ha-raui.  Even if the ineligible animal (the one that was already counted) was selected as ma'aser, at the time of the counting, the potential of selecting a bona fide ma'aser beheima existed.

            Tosafot questioned this application of minyan ha-raui claiming that counting only exempts under circumstances where there is no longer any possibility whatsoever to separate ma'aser (like the case mentioned in the beraita where the tenth animal died).  In our case, on the other hand, the possibility remains to continue counting and to designate both the tenth and eleventh animals as ma'aser, thereby covering all the possibilities.

            What do Tosafot mean by the assertion that the exemption of minyan ha-raui can't be applied here?  If the status of non-ma'aser is conferred independently upon the animals via the counting, prior to the designation of the ma'aser, as long as the count has the potential to culminate in ma'aser beheima, this can easily be applied to the case in our sugya as well. After all, the when the first nine animals were counted, there was high probability that an eligible animal would be counted tenth.  Apparently, Tosafot reject this notion and maintain that the entire counting process is an integrative system.  The first nine animals do not achieve a non-ma'aser status independent of the tenth.  Rather, the counting is the method through which the ma'aser is selected.  It is only via the designation of the ma'aser that the other nine animals are defined as non-ma'aser.

            According to this approach, the halakha of minyan ha-raui is not because the animals properly counted are non-ma'aser.  Rather, it is an independent exemption specific to a situation where there is no possibility to complete the count.  Although the animals not yet counted must be combined with a flock from which ma'aser was not removed, those animals already counted, which can never be counted again - cannot.  The exemption is not because they are considered non-ma'aser, but because they are ineligible to be recounted, based on the pasuk "whichever shall pass under the staff" (Vayikra 27:32), which excludes those that already passed (see Rashi s.v. kulam peturim). Therefore, Tosafot are perplexed by the application of this halakha to our sugya, where there is an option of continuing the count to ensure the proper selection of ma'aser.

            If we adopt this approach, despite the variant techniques of determining the ma'aser, there is no basic distinction between ma'aser beheima and ma'aser dagan.  In both it is the designation of the ma'aser which in turn defines the remainder as non-ma'aser.

            This understanding is supported by the preceding section of the sugya, which discusses whether a kohen has any monetary rights in a safek bekhor.  Rav Chananya attempted to clarify this issue based upon the halakha that the original owner includes a safek bekhor as part of his flock from which ma'aser beheima is separated.   He argued that if a kohen has a monetary claim on a safek bekhor, this scenario could lead to the unacceptable possibility that the owner is utilizing the kohen's property to exempt his flock from the obligation of ma'aser.  This argument seems cogent only if the flock of the owner is defined as non-ma'aser at the point that the safek bekhor is designated as ma'aser.  If, on the other hand, the counting itself, which is performed independently defines the flock as non-ma'aser, the owner is not actually using the kohen's property to exempt his flock.

3. Sanctification of the Tenth

          We have dealt at length with the manner through which the status of non-ma'aser is awarded.  At this point, we will shift to the method of designating ma'aser beheima.  Regarding ma'aser dagan the method used is proclamation - kriat shem.  The owner actively confers the status of ma'aser on the produce.  The mishna in Bekhorot (58b) refers to a declaratory act with respect to ma'aser beheima as well.  As one counts his flock, he verbally announces the tenth animal.  However, the mishna notes that this act is required only as a mitzva, but is not absolutely necessary.  Nevertheless, we can view the counting process as an effective substitute, since the owner implicitly designates the tenth animal as ma'aser by counting the first nine.

          Alternately, the method necessary to confer the status of ma'aser beheima may not correspond to that of ma'aser dagan whatsoever.  Perhaps, the status of ma'aser beheima is assumed automatically as long as the animal is the tenth.  This possibility is suggested by Rava's halakha that the tenth animal assumes the status of ma'aser automatically (Bekhorot 59a).

            Tosafot, as we mentioned above, question the application of minyan ha-raui to the case where an already counted animal gets mixed up with the section of the flock that has yet to be counted.  They argue that one should declare both the tenth and eleventh animal as ma'aser, thus covering all the possibilities.  This question implies that unless the eleventh animal is explicitly designated as ma'aser, it does not attain that status.  The requirement of a declaration is parallel to the "kriat shem" used to establish ma'aser dagan.

            The Ritva (s.v. Hadar) asks a similar but different question based on a mishna in Bekhorot (60a), which leads us to a different conclusion.  The mishna says that if one mistakenly counts the ninth animal as the tenth and the tenth as the ninth and the eleventh as the tenth, he has consecrated all of them.  Therefore, claims the Ritva, if the previously counted animal was illegitimately recounted among the first nine, the tenth animal is in actuality the ninth.  Thus, both this animal as well as the next (the actual tenth that was counted as eleven, which attains the status of ma'aser automatically) should be considered ma'aser, even without a specific declaration.

            The Ritva quotes two answers to this question.  The second answer which is attributed to Rabeinu Yona claims that in our case, only the animal actually counted as tenth would be considered ma'aser.  The eleventh animal which is actually the tenth cannot achieve the status of ma'aser since this status is awarded through the process of minyan (counting).  However, in our case where an animal ineligible for minyan has mixed in, the entire minyan process collapses.

            Perhaps this opinion maintains that there are two alternatives for designating ma'aser.  The first is the standard proclamation.  Based on this, the ninth animal (which was inadvertently declared the tenth) is verbally declared as ma'aser.  This applies even in our case where an ineligible animal has joined the flock.  The second method is not a status awarded explicitly or implicitly by the owner.  Rather, it is an automatic result of the minyan process via which the animal that follows the first nine is the actual tenth.  This is a reality, not a formal declaration. However, this method is only applicable when a proper minyan procedure can be performed.  However, when an ineligible animal is hidden somewhere among the flock, this disrupts the entire minyan process, since we have no definitive first second or third etc.

            Within this context, it is worthwhile to recall the position of R. Yossi be-R. Yehuda.  According to him, if one has a hundred animals, he can take ten and confer the status of ma'aser beheima on them directly, without counting.  We already suggested that this opinion is based on a comparison between ma'aser beheima and ma'aser dagan.

            This question, whether we view the status of ma'aser beheima as actively created by the owner, similar to ma'aser dagan, or as automatically attained, will have ramifications regarding the categorization of ma'aser beheima as a "davar ha-nadur" - an object whose status is artificially created via nedarim.  One can make a neder through "hatfasa" hinging the neder upon another object which is prohibited.  Hatfasa is effective only where the status of the second object was created itself through a neder process.  Can one hinge a neder on ma'aser beheima?

            The mishna (Nedarim 18b) refers to ma'aser as a davar ha-nadur.  Tosafot (s.v. Ve-im shel ma'aser) questions this categorization based upon the aforementioned gemara in Bekhorot (58b) that the tenth becomes ma'aser automatically.  Tosafot counter - since a process of minyan is required it can be considered davar ha-nadur.  This coincides with our suggestion, that the counting process is an implicit designation of the ma'aser beheima.

            If, on the other hand, we consider the status of ma'aser as an automatic result of the minyan process, it is difficult to categorize ma'aser beheima as davar ha-nadur.  However, since the Ritva agrees that both alternatives exist, hatfasa may be effective since the term ma'aser beheima refers also to a status that was verbally awarded by the owner's proclamation.  This is all the more so since a verbal declaration is the primary form for the selection of ma'aser beheima (see Ran s.v. Im kema'aser beheima).

            At the beginning shiur we noted that the relationship between ma'aser beheima and ma'aser sheni, is analogous to the relationship between bekhor beheima and bikkurim.  It is interesting that bekhor beheima achieves its status automatically because it is factually the firstborn.  Nevertheless, there is an obligation to consecrate it as a bekhor verbally (See Rambam hil. Bekhorot 1:4).

Summary

            We raised two basic approaches to ma'aser beheima.  According to one approach, the selection of ma'aser beheima corresponds to that of ma'aser dagan, while the second distinguishes between the two. We dealt with this issue regarding two independent applications:

1.  How are animals defined as non-ma'aser?  If we compare ma'aser beheima to ma'aser dagan, it is only via the selection of the ma'aser that the non-ma'aser is determined.  On the other hand, if there is no comparison, it is possible that regarding ma'aser beheima there is a method of defining the non-ma'aser animals independent of the selection of the ma'aser.  These two approaches found expression in the variant explanations of Rava's halakha "minyan ha-raui poter."

2. How is the status of ma'aser beheima conferred?  Conforming with ma'aser dagan would mean that the owner actively creates ma'aser beheima.  However, if we are not tied to ma'aser dagan categories, perhaps the status of ma'aser beheima is an automatic result of the fact that a certain beheima has been defined as the tenth.  This question determined our interpretation of another halakha of Rava; "asiri kadosh me-eilav" the tenth achieves automatic sanctification.

 

Sources and questions for next week's shiur:

1.  7a "Tanu rabanan shnayim adukim bi-shtar ... de-lo mikyim lei yachloku."

2.  Ketubot 19a "Ela ta'ama de-R. Meir ... vechutu le-dina," Tosafot s.v. Modeh.

3.  Bava Batra 5b "Iba'i lehu ... lo amrinan ma li leshaker."

Questions:

1.  In the case of "modeh bi-shtar she-katvo," why shouldn't the malveh be believed based on "shtarkha be-yadi mai ba'i?"

2..What "migo" does the loveh have?  Why is this migo less convincing than a normal migo?

3.  Can migo be applied when it contradicts the chazaka of "shtarkha be-yadi mai ba'i?"

4.  How would you define the status of an unverified shtar?