Moveable property is different — From the exchange in the Gemara, it emerges that if we hold that slaves are considered as movable objects, the first Braita says that the slaves are not acquired by one who makes a kinyon on the courtyard because they were not physically on the property. The second Braita that says they are acquired with the kinyon of the land is speaking of when the slaves are on the property when the kinyon is made. The Gemara asks: why should it be so? We have learned that the movable objects need not be on the land for the kinyon of ‘ אגב -together’ to be effective? We are compelled to say that there is a difference between ordinary movable objects that are not self- propelled and slaves that are self-propelled. The term self-propelled can be a bit misleading. Technically it can include animals which are self-propelled. They move by their own power and their own will. Tosafot knows from a Gemara in Masechet Kidushin 26b that kinyon of ‘ אגב -together’, is effective for animals even when they are not on the land that is used for the kinyon. We must find some distinction between slaves and animals that causes the difference in the rules that govern their kinyon. Tosafot expands the literal meaning of movable objects that are self- propelled in order to accommodate the distinction between animals and slaves. The explanation of movable objects that are self-propelled is: that they have intelligence and choose to move wherever they so decide, but animals are not considered movable objects that are self-propelled, and they can be acquired via the kinyon of ‘ אגב -together’, even if they are not upon the land, as the Gemara says in the first chapter of Kidushin (26b) where the Gemara is relating a story about a man who used the kinyon of ‘אגב -together’ to transfer one hundred sheep and he said: a tefach by a tefach of land, is given to p’lonee, and together with it one hundred sheep. Obviously one hundred sheep cannot be placed on a four inch square piece of land, the kinyon was effective even though the sheep were not on the land. Why do sheep differ from slaves, where we say that they must be on the land? The difference must be because the slaves move about as a result of their intelligence and the animals do not have intelligence.
Moveable land is different — The Gemara concludes that just as we are compelled to distinguish between movable objects that are self propelled and those that are not according to the one who holds that slaves are considered movable objects, so too, we must distinguish between land that is self propelled, such as slaves and ordinary land which is stationary. It seems that this is the only distinctive characteristic between land and slaves. Tosafot suggests that there is another reason to distinguish between taking possession of ten fields in ten provinces and acquiring slaves that are not on one’s property. The Gemara in Bava Batra 67a discusses acquiring two parcels of land that are utilized for different purposes and says that the חזקה made for one is invalid for the other. When challenged from Shmuel’s rule that one can acquire ten fields in ten provinces with one חזקה, the Gemara responds: Shmuel is speaking of where all ten fields are utilized in the same manner, a sand lot and a river bed are different functions. And if you ask: even if slaves would not be self propelled, but they, the land and the slaves, serve two different functions, and taking possession of them, land and slaves, is similar to a sand lot and a river bed, where we have learned that one who takes possession of one of them, does not acquire the other, so too, one who takes possession of land should not acquire the slaves because they serve different functions, as the Gemara says in chapter HaMochair Es HaBayis (Bava Batra 67a) according to one version. There is an alternate version there that holds one can acquire a sand lot and a river bed with one חזקה. And one can answer: that a slave and land are considered one function because the slave is fit for working the land.
Who [is] the Tanna? The Mishna states that if one damages property that is not subject to the m’eeloh violation, he is liable for damages. If however, the property is subject to the m’eeloh violation, one who damages that property is not liable for damages. That property is not the property of ‘רעהו -his neighbor’ and he is therefore not liable. Our Gemara deduced that since the Mishna mentioned the m’eeloh violation as the determining factor, we can see that even if the property is holy and has been designated for the temple service, one may be liable for damages as long as there is no m’eeloh violation. The Gemara then asks: who is the Tano that holds this position? Tosafot wonders: there seems to be a very simple solution to this question. Land that has been given to the temple treasury is holy, but not subject to the m’eeloh violation. Why doesn't the Gemara present this case as one, which satisfies the conditions, holy but not subject to the m’eeloh violation? What is meant is: that it was plain to the Gemara that the Tano did not intend to exclude those holy properties where there is no m’eeloh violation such as land. For since they are totally the property of the temple, the fact that there is no m’eeloh, would definitely not make any difference. Such property definitely belongs to the Temple Treasury even though there is no m’eeloh violation for benefiting from land that belongs to the Temple Treasury. The Gemara understands that what we are searching for is a situation where lack of m’eeloh violation indicates that the temple ownership is not total and the property still falls within the realm of ‘his neighbor’s’.
But does he say [his opinion] when [it is] alive? Since this Tosafot is a bit lengthy and complicated, we are including a step by step outline of the movements of the Tosafot. Outline of תוספות ד"ה ומחיים מי אמר A) Question: What can the Gemara possibly mean with its question? If not when the animal has been slaughtered and not when it is alive, when then did R’ Yosee say that kodshim kalim is the property of its owner? B) Rejected solution: That the Gemara is asking that perhaps R’ Yosee said that kodshim kalim is the property of its owner only when the sacrifice is not suitable to be offered but if it is suitable to be offered as a sacrifice it is not the property of its owner. This solution is then rejected by Tosafot, because although R’ Nachmon’s explanation of the Mishna tends to support it, the statement of Ben Azzai clearly says that sh’lomim are included in R’ Yosee’s statement and they are suitable to be offered as a sacrifice. C) Solution: The Gemara is questioning whether the entire animal is the property of its owner or perhaps only that portion of the animal that will not be given to the Kohanim. The Gemara will eventually prove that R’ Yosee does not hold that the Kohanic gifts are the property of the owner even while the animal is alive. D) Tosafot challenges his explanation of the Gemara’s question from the Gemara in Masechet Beitzah 21a, where it appears that even the portion of the owner is a gift from the Table of the Most High. E) Tosafot concludes that in fact the portion of the owner is his property even after the animal is slaughtered. F) Tosafot concedes that according to his approach, the conclusion of the Gemara in Kidushin 52b does not concur with the conclusion of our Gemara. The Gemara has just concluded that R’ Yosee’s position that kodshim kalim are considered the property of the owner who has donated the sacrifice, is only true while the animal is still alive. After it is slaughtered it becomes the property of the temple and it is given to the Kohain as a gift to eat, but it is not his property as is evident from the Mishna in Kidushin 52b. The Gemara now questions whether R’ Yosee said this statement about a live animal. This is very perplexing. We know that R’ Yosee did make the statement. How can we even question whether it was said in reference to a live animal, if we know that it hr did not say it about an animal that was already slaughtered, he must have said it about a live animal? Is there any another option? This is bewildering: What is the Gemara thinking? If while they are alive he did not say, that kodshim kalim are the donor’s property, he certainly did not say that after they were slaughtered that kodshim kalim are the property of the Kohain, as we have seen in the Gemara, that post-slaughtering, the meat is a gift to the Kohanim from the Temple. We must conclude that when the Gemara asks: “Does it truly apply when the animal is alive?” The Gemara does not mean to say that perhaps the rule does not apply at all, but rather the Gemara means: perhaps it doesn't apply in all the situations that you have indicated but only in one of them. By saying that it applies when the animal is still alive we are stating that in all cases that the animal is alive it is the property of the owner. When the Gemara now asks: “And did R’ Yosee say his rule when the animal is still alive?” The Gemara means: Did he say it in all cases or perhaps only in one? Tosafot is now trying to determine which circumstances of ownership of kodshim kalim is the one that the questioner wants to reject and which he accepts. Tosafot’ first thought on the matter is that we might differentiate between those animal’s that are suitable to be offered on the altar, which are not the property of the original owner because they are going to be offered on the altar and those that are not suitable to be offered on the altar, which are the property of their original owner. Tosafot rejects this suggestion. And we should not say that the meaning of the Gemara’s question is as follows: and when the animal is alive, was it said that in all instances the animal is the donor’s property even when the animal is fit to be offered on the altar? The Gemara is thus suggesting that R’ Yosee’s rule might only to animals that are not fit to be offered on the altar. Tosafot will first explain why the questioner assumes that R’ Yosee’s statement included animals that are fit for the altar: That R’ Yosee is speaking even about animals that are fit for the altar might be inferred from the fact that the Gemara distinguishes between when the animal is alive and when it has already been slaughtered. This implies that in all instances that the animal is alive, even when it is suitable to be offered on the altar, you consider it his, the donor’s, property, just as the animal spoken of post-slaughtering was suitable for the altar. By virtue of the fact that it was already slaughtered, it is evident that it was in fact suitable to be offered on the altar. Tosafot must now show us why this approach is incorrect: For if it was so, when the Gemara attempts to refute the assertion that R’ Yosee’s rule applies to animals which are fit for the altar, from the fact that Raveeno said that R’ Yosee was discussing a firstborn born outside of Eretz Yisro’ail, the Gemara should have defended it’s position, that sacrifices that are suitable to be offered are the donor’s property by mentioning that Ben-Azzai says that the superfluous word “ לשם ” comes to include sh’lomim for oshom liability when falsely swearing in denial of a claim involving the loss or theft of the sh’lomim, which is clearly speaking about a live animal that is suitable to be sacrificed on the altar. Tosafot here is referring to a portion of the Braita which appear on 13a. The Gemara mentions that there are two opinions clarifying the statement of R’ Yosee. Ben-Azzai says that R’ Yosee was referring to Sh’lomim when he mentioned “minor Kodshim”. Abba Yosee says he is referring to a firstborn. Ben-Azzai and Abba-Yosee are coming to clarify R’ Yosee’s position as Rashi said. Sh’lomim are fit for the altar, and may initially be offered. Ben-Azzai mentioned Sh’lomim which are fit for the altar as a clarification of R’ Yosee’s ruling, so we see that R’ Yosee certainly is discussing animals which are fit for the altar and we cannot say that the questioner meant to distinguish between animals which are fit for the altar, and those which are not. We must now find a distinction that can be made between some instances where we do apply R’ Yosee’s principle that kodshim kalim are the property of the owner who designated them as a sacrifice and other cases where we say that kodshim kalim are the property of the Table of High (Hashem’s). And we can answer: that the explanation of the Gemara’s question is as follows: And did R’ Yosee say that while the animal is alive, it is entirely the owner’s property, even those portions, the breast and right thigh, that Kohanim will receive from the Sh’lomim? As for the portion that belongs to the donor, it was plain to the Gemara that it is the property of the donor. The Gemara’s question at this juncture pertains only to the eventual gifts of the Kohanim. But what is the basis for this understanding that when the Gemara indicated that while the animal is still alive kodshim kalim is the property of the donor; it is referring even to the portion that will eventually be given to the Kohanim? The questioner understood that the ruling ‘kodshim kalim is private property’ refers even to the future Kohanic gifts from the fact that the Gemara did not initially answer when presented with the contradiction from the Mishna in Kidushin that says that the Kohain cannot use his portion to affect Kidushin, that gifts to the Kohain are different, and are not considered the donor’s property since they will ultimately be given to the Kohanim. Tosafot proves that the question was directed at the gifts of the Kohain because he who betroths “with his portion” is a reference to the gifts of the Kohain, the portion that he receives from the sh’lomim. Since the Gemara does not answer that the Kohanic gifts are different, but rather says that after the slaughter of the animal the Kohanim receive their portion as a gift from the temple table and then it is not the property of the owner, is an implication that as long as the animal is alive, even the gifts of the Kohain are the donor’s property. According to Tosafot’ explanation, the Gemara’s question is that the Kohanic gifts should not be considered the property of the owner even while the animal is alive. The Gemara according to Tosafot’ text (see תוספות ד"ה ואם איתא) eventually accepts this argument and concludes that R’ Yosee’s rule does not apply to the Kohanic gifts. This explanation of the Gemara’s question is based on the fact that the Gemara did not initially answer that the Kohanic gifts are different and they are not the property of the donor. Perhaps there is some other reason why the Gemara did not use this answer? And if you ask: Had the Gemara answered that Kohanic gifts are different, the implication would be that only the Kohanic gifts are temple property and that the portion of the donor is privately owned even after the slaughtering of the animal. Perhaps the Gemara did not want to use this answer because we have learned in the second Chapter of Beitzah (21a) that even the portion of the owner is considered a gift from the temple table? Tosafot must show that the Gemara in Beitzah 21a is referring to another aspect of kodshim kalim being the property of its owner: And we can answer: That the statement of Beitzah (21a) pertains to the aspect of sacrifices that are commitments and donations, that may therefore not be offered on the Holidays and are not treated as regular non-sacrificial animals, which may be slaughtered for food, because the primary purpose of the slaughtering of those sacrifices is that they be a sacrifice to Hashem and not to be used as food for the owners (even though that is the secondary purpose) and this is a violation of the rule that work may be performed on the Holidays only “for you, your personal needs, and not for the temple sacrifices”. It is in reference to that ruling that Beitzah (21a) states that the portion of the owners comes from the temple table but not in reference to financial ownership. However, it is plain that the portion of the donor, even after the slaughtering of the animal, is privately owned to be used to betroth a woman and for any other purpose. And so it can be understood that the term one who betroths “with his allocation” refers to the Kohanic portion. For the expression “his allocation” can only refer to the Kohanic portion. For the owner ’s share cannot be referred to, as an “allocation” since the flesh of the sacrifice is mainly theirs and it is they who allocate to the Kohain. The Scripture cited as proof in Perek Ho’ish M’kadesh (Kidushin 52B) in reference to the Mishna about ‘one who betroths with his share’, which is “and this shall be to you from the holy of holies from the fire” was written only in reference to the share of the Kohanim. This also reinforces Tosafot’ conclusion that “his portion”, that cannot be used to affect Kidushin is specifically the allocation of the Kohain. The donor of the sacrifice can use his share of the flesh to betroth a woman. (Rashi ד"ה כי זכו, and many Rishonim clearly disagree with Tosafot on this point.) And that which the Gemara queries there (Kidushin 52B): Let us say that our Mishna that says that one who betroths with his share of a sacrifice does not affect Kidushin, does not follow the opinion of R’ Yosee who says that kodshim kalim is the property of its owner and one can affect Kidushin with them? And the Gemara concludes that R’ Yosee’s statement was said only when the animal is alive. A proof: The Mishna states “one who betroths with his share” which implies that the Mishna is discussing the portion he receives post-slaughtering. The Gemara’s conclusion in Kidushin 52b that “his portion” implies post-slaughtering does not concur with the conclusion of our Gemara but with our Gemara’s original speculation that the Kohanic gifts are the property of their owner when the sacrifice is still alive. For at its conclusion, our Gemara holds that the Kohanic gifts are temple property even while the animal is alive.
Unblemished [and] alive but not slaughtered — Notice that in the text of our Gemara the words ולא שחוט appear in the Mishna in parentheses. Tosafot text of the Mishna apparently had the words אבל לא שחוט and Tosafot needs to explain that this ruling that an unblemished firstborn cannot be sold post-slaughtering is simple and not really needed. This information, that an unblemished firstborn may not be sold after it is slaughtered, was not necessary. Because we will soon interpret the Mishna as speaking about a firstborn nowadays, when there is no temple and the firstborn cannot be offered, and so it is not possible to sell it, the flesh of the firstborn, after slaughtering because it is prohibited to benefit from it since it was not offered on the altar as is required of all sacrifices. The firstborn animal is a sacrifice at birth and when it is slaughtered outside of the Temple it is totally forbidden. If so, what is the Mishna teaching us? However, the Mishna informs us that it, the firstborn, can be sold while it is alive even though a similar sacrifice, the tithe may not be sold, because the verse says about the tithe “he may not be sold and he may not be redeemed” (Vayikra 27, 33). And so it is in the first Chapter of T’muroh (5b).
And Rava raised an objection to Rav Naḥman — Rav Nachman said that the Mishna which teaches that one may sell a live unblemished firstborn is speaking of a firstborn nowadays, when there is no Temple and the firstborn is not suitable to be offered as a sacrifice. However, during the period of the Temple an unblemished firstborn that is suitable to be offered on the altar, is not the property of its owner. Rovo challenges Rav Nachman’s interpretation of the Mishna, based on the Braita that teaches us that R’ Yosee Ha’Gleelee says that kodshim kalim is the property of its owner. But perhaps R’ Yosee is all speaking about kodshim kalim nowadays, when we have no Temple? Where is it indicated in the Braita that it is speaking about when the Temple stood? Tosafot suggests: And this Braita is speaking of when the Temple stood, because the kodshim kalim the Braita is discussing are comparable to sh’lomim. The Braita is speaking of sh’lomim as well, as can be seen from the statement of Ben Azzai 13a, who is clarifying R’ Yosee Ha’Gleelee. Sh’lomim are in existence only when there is a Temple, and so too the kodshim kalim R’ Yosee is discussing must be those that were in existence when the Temple stood, as the Gemara says in the first Perek of T’muroh (8a). Alternatively, we can say that the Braita is speaking of kodshim kalim when the Temple stood as Rashi explained: That it is in regard to the obligation to bring a sacrifice for violating the property of the Temple that this verse is expounded and that, bringing the M’eeloh sacrifice, is only possible when the Temple stood, thus the concept of kodshim kalim being the property of its owner must be speaking of when there is a Temple and the sacrifice is suitable to be offered on the altar.
[Regarding] a firstborn outside of the Land [of Israel] — Rav Nachman explained the Mishna in Maasair Shainee, Perek 2, Mishna 2, that discusses one’s right to sell a live unblemished firstborn as speaking of nowadays when it is not possible to offer it as a sacrifice because there is no Temple. When Raveeno wants to deflect the proof from R’ Yosee Ha’Gleelee’s statement about kodshim kalim, he says that it is speaking of a firstborn outside of Eretz Yisro’ail. Tosafot will explain why Raveeno could not have said that R’ Yosee is speaking of nowadays when there is no Temple and why Rav Nachman did choose to speak of a firstborn nowadays. The reason that Raveeno did not answer that R’ Yosee is speaking about a firstborn nowadays, when there is no Temple, is because that Braita is speaking of kodshim kalim that are comparable to sh’lomim, which exist only when the Temple stood, as we explained earlier in the previous Tosafot, (Tosafot.com, P. 33) as is explained by the Gemara in T’muroh 8a. But R’ Nachmon explained the Mishna in Maasair Shainee as speaking of a firstborn nowadays? However, Rav Nachman earlier when explaining the Mishna that permits selling a live unblemished firstborn, could have said that it is speaking of a firstborn born outside of Eretz Yisro’ail, but that is an awkward explanation, to say that the Mishna is not speaking about all firstborns, but only a small minority of firstborns that are likely to be born outside of Eretz Yisro’ail when the Temple stood. He is more at ease interpreting the Mishna as speaking about a firstborn nowadays, which deals with all firstborns and not only a small minority.
And is in accordance with Rabbi Shimon, who says — If [they] came [from outside of Eretz Yisrael to Eretz Yisrael and they are] unblemished, they may be sacrificed. By saying that Raveeno is explaining the Braita of R’ Yosee as speaking of a firstborn outside of Eretz Yisro’ail according to R’ Shimon, it is understood that there is an opposing opinion, which our Gemara does not explicitly mention. Tosafot cites and explains that opposing opinion and also clarifies our Gemara’s hesitation to attribute the Braita of R’ Yosee Ha’Gleelee to the opposing opinion. R’ Akiva argues with him, R’ Shimon, in Perek Ailu Kodshim in T’muroh (21b) and says they, foreign firstborns, may not be offered on the altar even if they were already brought to the Temple. Because he expounds from a comparison in the verse D’vorim 14, 23, where the ‘second tithe’ appears adjacent to the ‘firstborn’, from a place that you do not bring second tithe, outside of Eretz Yisro’ail, you may not bring a firstborn to be offered on the altar. Now that we know that the opposition, R’ Akiva, holds that a firstborn born outside of Eretz Yisro’ail, may not be offered as a sacrifice in the Temple, Tosafot asks: And if you ask: Why does the Gemara say that the Braita of R’ Yosee Ha’Gleelee is speaking of a firstborn born outside of Eretz Yisro’ail and is following R’ Shimon, certainly according to R’ Akiva who says that they may not be offered, even if they have already been brought to Eretz Yisro’ail, they are his, the owner’s, property? It is only when an animal may be offered on the altar that we consider the possibility that it is not the property of its owner since it must be offered as a sacrifice, but when an animal is definitely not suitable to be offered in the Temple as is true of a firstborn born outside of Eretz Yisro’ail according to R’ Akiva, it is definitely not the property of the Temple, but the property of the owner. And we can answer: That Raveeno interprets the Braita of R’ Yosee Ha’Gleelee according to R’ Shimon who says that if the firstborn was brought to Eretz Yisro’ail they are to be offered as a sacrifice in the Temple, because the Braita is speaking of sacrifices that are comparable to sh’lomim, which are eligible to be offered, even though the foreign firstborn is not initially offered in the Temple, it can be offered if it is brought to Eretz Yisro’ail, whereas according to R’ Akiva, the foreign firstborn may not be offered at all even post-facto of its arrival in Eretz Yisro’ail. Furthermore, we can answer: That it is compelling not to interpret the Braita as following R’ Akiva, since the Braita requires a verse to incorporate kodshim kalim as the property of the owner, whereas according to R’ Akiva who holds that the foreign firstborn can never be offered as a sacrifice there is no need for a verse to teach us that it is the property of its owner. It is only according to R’ Shimon who holds that there is a possibility of offering it as a sacrifice that we require a verse to teach us that even so it is the property of its owner.
Not from the outset — The Gemara deduces that a firstborn is offered only if it has already been brought from outside Eretz Yisro’ail, but not initially. The term ‘not initially’ can be interpreted two ways: A) That if they are brought to Eretz Yisro’ail they may still not be initially offered as a sacrifice. It is only post-facto, if the Kohain violated this prohibition and sacrificed the firstborn on the altar that it is considered a proper sacrifice and may be eaten as the flesh of all other firstborns are eaten. B) That the alien firstborn need not be transported to Eretz Yisro’ail, but if the owner desires to bring him, it may initially be offered as a sacrifice. Tosafot tells us that it is the second explanation that is correct. The explanation of ‘not initially’ is: it is not necessary to bring them, the firstborns from outside Eretz Yisro’ail, as the Gemara explains in Perek Ailu Kodshim (there 21a), R’ Shimon said: What is the reason that firstborns need not be brought to Eretz Yisro’ail to be offered in the Temple? Because all other sacrifices do not have a remedy in their place when outside Eretz Yisro’ail, the explanation: their sanctity can only be released in the Temple, even when they are blemished and they cannot be offered as a sacrifice, they must be redeemed and the money realized from the redemption is used to purchase an animal to replace the original sacrifice in the Temple, except for the firstborn and tithe animals that do have a remedy in their places outside of Eretz Yisro’ail. The explanation is: That they are eaten because of their blemish and there is no redemption that needs to be brought to the Temple. Our Gemara attributes this position to R’ Shimon. As we will soon see there is reason to believe that this is in fact R’ Yishmo’ail’s position. It is for this reason that our Gemara depends this position on R’ Shimon, because the entire Mishna there in T’muroh 21a, which first says anonymously that if the unblemished firstborn is brought to Eretz Yisro’ail it may be offered and is then explained by R’ Shimon is the position of R’ Shimon. And it is slightly appealing to emend the text to read ‘R’ Yishmo’ail’ instead of ‘R’ Shimon’, because the Gemara there challenges the Mishna that says ‘they, the alien firstborns, should be offered’ from the story of the son of Antoninus who brought firstborns from Babylonia and they did not accept them as offerings in the Temple. The G'moro there answers: This follows R’ Yishmo’ail and that follows R’ Akiva. And it is evident there in T’muroh 21a, that the Mishna there in T’muroh follows R’ Yishmo’ail and the Braita about the son of Antoninus follows R’ Akiva who says that the alien firstborns may not be offered in the Temple as a sacrifice. It is clear that the Gemara in T’muroh attributes the Mishna of T’muroh to R’ Yishmo’ail. Tosafot therefore says that it is slightly appealing to emend the text of our Gemara to read that the Braita of R’ Yosee Ha’Gleelee follows the opinion of R’ Yishmo’ail and is discussing a firstborn from outside Eretz Yisro’ail.
And if it is so let him answer him — In the course of this Tosafot he will refer to his explanation of the Gemara’s discussion as he explained it in תוספות ד"ה ומחיים. It is definitely worthwhile to review that Tosafot before proceeding to this Tosafot. The Gemara will now finally complete its question about the Gemara’s previous answer that the Mishna in Kidushin 52b can concur with R’ Yosee Ha’Gleelee who says that kodshim kalim is the property of its owner, who designated the animal as a sacrifice. The Gemara asked that the Mishna that says that one who betroths a woman with his portion of kodshim kalim does not affect Kidushin because the ‘portion’ is not his property. The Gemara answered: That after the animal has been slaughtered all agree, even R’ Yosee that it is the property of the Table of the Most High and the Kohanim receive it as a gift from Hashem only to be eaten. R’ Yosee who said the kodshim kalim are the property of their owners was speaking strictly about when the animal is still alive. We will refer to this position as ‘the answer’ of the Gemara. The Gemara then questions ‘the answer’. Tosafot explained that the Gemara’s question was: Did R’ Yosee say that kodshim kalim are the property of the owner even as far as the parts of the animal that are gifts of the Kohanim? The entire thrust of the Gemara’s question is only to prove that the Kohanic gifts of kodshim kalim are not the property of their owner even while alive. To this end the Gemara quoted a Mishna in Masechet Maasair Shainee, Perek 1, Mishna 2, which says that one can sell a live unblemished firstborn. Rav Nachman said in the name of Rabbah bar Abuho that the Mishna is referring exclusively to nowadays, when the animal cannot be offered as a sacrifice. This indicates that if the animal could be offered as a korbon it could not be sold. When Rovo challenged Rav Nachman with the Braita of R’ Yosee Ha’Gleelee, which says that kodshim kalim are the property of their owner, Raveeno said that R’ Yosee Ha’Gleelee was speaking about a firstborn that was born outside of Eretz Yisro’ail which is also not going to be offered as a sacrifice. The Gemara now analyzes the dialogue between Rovo and Raveeno as it relates to ‘the answer’ that the Gemara originally said: The explanation: If it is so, that when the korbon is alive, it is all the property of its owner, even the Kohanic gifts which are suitable to be offered such as a live unblemished firstborn during the Temple period, when the Gemara inferred from Rav Nachman in the name of Rabbah bar Abuho that when the Temple stood, the live unblemished firstborn could not be sold, he, Raveeno, should have answered Rovo: That statement of Rav Nachman in the name of Rabbah bar Abuho is in accordance with the Rabonon, who disagree with R’ Yosee and hold that kodshim kalim is the property of the Temple, because however you choose to view this issue, that ruling cannot follow the opinion of R’ Yosee HaG’leelee. R’ Yosee HaG’leelee is saying that even when a live animal is suitable to be offered as a korbon, even if it is a Kohanic gift, such as a firstborn, it is the property of its owner. Rav Nachman is saying the exact opposite in his explanation of the Mishna in Maasair Shainee, by stating that an unblemished firstborn can be sold only nowadays when there is no Temple, but during the Temple period it was not the property of its owner and could not be sold. There is no way to reconcile that position with ‘the answer’ of our Gemara. Raveeno’s answer, that R’ Yosee is also speaking about a firstborn that was born outside of Eretz Yisro’ail and will also not be offered as a sacrifice seems to acknowledge Rav Nachman’s position that a firstborn that is suitable to be offered is in fact not the property of its owner. The Gemara later 53b speaks of a situation where an ordinary ox and an ox that was a disqualified sacrifice both gored a third ox. There is an assumption in the Gemara there that the disqualified korbon is not the property of its owner and does not satisfy the criteria that liability for damages is dependent on the ox being שור איש- an ox of a man, which indicates that the damaging ox must be the property of its master. Thus the previous owner of the disqualified korbon is not liable for any damage that the disqualified ox causes. Abaye and Rovo dispute the extent of the liability of the owner of the ordinary ox. Although the Gemara there speaks of a ‘disqualified korbon’ which usually means an animal that developed a blemish and was redeemed, Rav Y’hudai G’on says that the Gemara cannot possibly be referring to such an animal, because a disqualified korbon that has been redeemed is definitely the property of its owner and satisfies the criteria of שור איש- an ox of a man. He insists that the Gemara there is discussing a firstborn that developed a blemish. We have seen that the firstborn that develops a blemish is not redeemed at all. He is slaughtered and eaten as is. While he is alive he does retain certain prohibitions of a sacrifice, which are that it is forbidden to shear him or work with him. Rav Y’hudai G’on says that it is the blemished firstborn who is not considered the property of his owner and does not satisfy the criteria of שור איש- an ox of a man. We must now review the status of this blemished firstborn in light of what we have learned in our Gemara about the position of R’ Yosee HaG’leelee and the Rabonon who disagree with him. According to ‘the answer’ of our Gemara, R’ Yosee who says that kodshim kalim are the property of their owner is referring to an animal that is suitable to be offered as a sacrifice. The Rabonon disagree with him and say that if the animal is suitable to be offered it is not the property of the owner, but the property of the Temple. Presumably, even the Rabonon who disagree with R’ Yosee about an animal that is suitable to be offered, would agree that if the animal was unsuitable, such as a blemished firstborn or one born nowadays, it would be considered the property of its owner. In fact our Gemara, which suggests that if R’ Yosee is speaking of a korbon that is fit to be offered, Rav Nachman who said that the Mishna in Maasair Shainee that says a firstborn can be sold while alive is speaking of a firstborn born when there is no Temple, is clearly saying that according to the Rabonon an unblemished firstborn is the property of its owner. If so we must now re-examine the Gemara on 53b that speaks of a blemished firstborn as not being the property of its owner. Is there anybody who holds that way? And according to this thinking, ‘the answer’ of our Gemara, which holds that R’ Yosee is speaking of a live animal and is saying that it is the property of its owner, the Rabonon would agree that if the animal is not suitable to be offered it is the property of its owner, that which is understood from the Gemara later at the end of HaPoroh (53b), that a blemished firstborn is not within the criteria of ‘the ox of his neighbor’, even nowadays, when there is no Temple, is not true, because according to ‘the answer’ there is nobody who holds that a firstborn that is unsuitable to be offered is not the property of its owner. The Rabonon who disagree with R’ Yosee HaG’leelee and hold that a korbon is Temple property, do so only in reference to an animal that is suitable to be offered, but not in reference to an animal that is not suitable to be offered. Tosafot elaborates on what we see in the Gemara on 53b: For Abaye and Rovo argue about an ordinary ox and an ox that is a disqualified sacrifice that together gored a third ox. And Rav Y’hudai G’on explained that the ‘disqualified sacrifice’ they are discussing is a firstborn ox that was blemished and is thus unsuitable to be offered as a sacrifice, which will not be redeemed, as opposed to the usual meaning of a disqualified sacrifice, which refers to a korbon such as a sh’lomim or an oloh that developed a blemish and were redeemed. Rav Y’hudai G’on insists that the usual ‘disqualified sacrifices’ that have been redeemed are in fact private property once they have been redeemed. And we must say as he explained that a ‘disqualified korbon’ refers to a blemished firstborn as I will clarify there on 53b with the help of Hashem. And they, Abaye and Rovo, are most probably arguing about the status of a blemished firstborn in their times, which was the post-Temple period. For nowadays according to all opinions, R’ Yosee and the Rabonon, a blemished firstborn is private property, and there is no one who holds that a blemished firstborn is not the property of its owner. If so, according to whom are Abaye and Rovo saying that there is no liability for the damages of the blemished firstborn because it does not qualify as ‘the ox of his neighbor? All opinions hold that a blemished firstborn is the property of its owner and if he damages, his owner should be liable. In conclusion Tosafot holds that ‘the answer’ of our Gemara does not concur with the Gemara on 53b that says a blemished firstborn even nowadays when there is no Temple is not private property. Once Tosafot explains the conclusion of our Gemara according to his opinion, he will once again review the Gemara on 53b and show how and why the two Gemaras are in agreement. Tosafot now resumes explaining the text of our Gemara: And the Gemara answers: Rather, in order to reconcile the position of R’ Yosee HaG’leelee and the Mishna in Kidushin 52b, we will not distinguish between when the animal is alive and when it is slaughtered, but we will distinguish between the Braita and the Mishna by saying that Kohanic gifts are different. The Mishna that says in Kidushin that one cannot betroth with his portion is speaking about the parts of the animal that are given to the Kohanim. We will now concede that they are not the property of their owner even while the animal is alive. R’ Yosee HaG’leelee is speaking of the parts of the animal that are eaten by the owner. They are the property of their owner both when the animal is alive and after it is slaughtered. We retract the original ‘answer’ of the Gemara that the difference between the Mishna and R ’Yosee is that the Mishna is speaking of when the animal has been slaughtered and R’ Yosee is speaking of when the animal is alive. This total retraction from the previous answer is indicated by the use of the word ‘אלא’- rather, which says that ‘the answer’ is no longer viable. And this insertion of the word, אלא is the text of Rabbeinu Chananail. And Rashi does not have this text with the word אלא. As we have seen, Rashi is of the opinion that even the portion of the owner is a gift from the Table of the Most High. The owners of the korbon cannot betroth with their portion after the animal is slaughtered. The Gemara is now saying that as far as the Kohanic gifts are concerned, you have adequately demonstrated that there is no difference between when the animal is alive and after it is slaughtered, but as far as the share of the owners, the distinction between when the animal is alive and when it is slaughtered is still in effect. ‘The answer’ of the Gemara is still viable as far as the portion of the owner is concerned. There is no retraction on this point. The Gemara is merely conceding that whereas we originally thought that this distinction was true for about the Kohanic gifts and the owner’s portion, we now see that it is untrue about the Kohanic gifts. Thus there is no need for the word ‘אלא’because there is no total retraction from the original ‘answer’ as there is according to Tosafot’ explanation. Tosafot will now take a second look at the Gemara on 53b in view of his explanation of the conclusion of our Gemara. And now, according to Tosafot explanation, the statement of Rav Nachman, that the Mishna in Maasair Shainee which says that a live unblemished firstborn can be sold only nowadays when there is no Temple, but not when there was a Temple, can be interpreted only according to R’ Yosee HaG’leelee, because it is R’ Yosee HaG’leelee who says that at some point kodshim kalim is the property of its owner. When the animal is suitable to be offered as a sacrifice, even he says that it is not the property of its owner. It is only a firstborn nowadays that is the property of its owner and can be sold. The Rabonon who argue with R’ Yosee obviously must hold that even when the animal is not fit to be offered in the Temple, it is not the property of its owner. Rav Nachman who is also saying that the Mishna is telling us that when the animal is unfit to be offered it is the property of its owner, must be following R’ Yosee HaG’leelee. The Rabonon who argue with him must hold that even when the animal is unfit to be offered it is still the property of the Temple. Thus, the dispute between Abaye and Rovo later on 53b, where both agree that a blemished firstborn even nowadays is not ‘the ox of my neighbor’, must follow the opinion of the Rabonon who say that even when a korbon is unfit to be offered, it is Temple property. According to the conclusion of our Gemara, the Rabonon hold that even an unsuitable korbon is Temple property, whereas according to ‘the answer’ of our Gemara there is no opinion that holds that an unfit korbon is Temple property. Although we are now compelled to say that the Rabonon hold that when a firstborn is blemished and even nowadays when there is no Temple, it is still considered Temple property, Tosafot does want to limit this notion to some degree. It appears that it is exclusively when the animal is alive that the Rabonon hold it is Temple property, even if it is blemished, because there are some limitations on the way it may be used because of its status as a firstborn, for it is forbidden to shear it if it is a sheep and work with it. Since there is some remnant of it original sanctity that expresses itself through these prohibitions it may be considered Temple property, but after it is slaughtered, why should it be considered Temple property even when the Temple is standing? Once it is slaughtered there are no longer any restrictions about how the m eat may be eaten. There is no remnant of its initial sanctity, for it is even permitted to feed it, the flesh of the firstborn, to a gentile as the Gemara teaches in a Braita in Perek Kol P’sulai Hamukdoshin (B’choros 33a), that it, the flesh of a blemished firstborn, is compared by the verse to a deer and a gazelle. These are undomesticated animals and are never offered as a sacrifice. Their flesh never has any status of sanctity at all. When the Torah compares flesh of a disqualified firstborn to a deer and a gazelle it is saying that there is no remnant of its initial sanctity at all and should therefore not be considered Temple property, rather private property.
