מַסּוּתָא דַּהֲווֹ מִנְּצוּ עֲלַהּ בֵּי תְרֵי, הַאי אָמַר דִּידִי הוּא וְהַאי אָמַר דִּידִי הוּא. קָם חַד מִינַּיְיהוּ אַקְדְּשַׁהּ. פָּרְשִׁי מִינַּהּ רַב חֲנַנְיָה וְרַב אוֹשַׁעְיָא וְכוּלְּהוּ רַבָּנַן. וַאֲמַר לֵיהּ רַב אוֹשַׁעְיָא לְרַבָּה: כִּי אָזְלַתְּ קַמֵּיהּ דְּרַב חִסְדָּא לְכַפְרִי, בְּעִי מִינֵּיהּ.

bathhouse over which two people were arguing, and of which neither of them were in possession. This one said: It is mine, and that one said: It is mine. One of them arose and consecrated the bathhouse. Rav Ḥananya and Rav Oshaya and all the Rabbis kept away from the bathhouse and refrained from bathing there lest they transgress the prohibition against misusing consecrated property, as they were uncertain whether this act of consecration took effect. And Rav Oshaya said to Rabba: When you go to study before Rav Ḥisda in the town of Kafrei, ask him what we should do in this case.

כִּי אֲתָא לְסוּרָא, אֲמַר לֵיהּ רַב הַמְנוּנָא: מַתְנִיתִין הִיא. סְפֵק בְּכוֹרוֹת, אֶחָד בְּכוֹר אָדָם וְאֶחָד בְּכוֹר בְּהֵמָה, בֵּין טְהוֹרִים בֵּין טְמֵאִים: הַמּוֹצִיא מֵחֲבֵירוֹ עָלָיו הָרְאָיָה. וְתָנֵי עֲלַהּ: אֲסוּרִים בְּגִיזָה וּבַעֲבוֹדָה.

When on his way to Kafrei, Rabba came to the city of Sura and related the incident to the Sages there. Rav Hamnuna said to him: The resolution to your dilemma is found in the following mishna (Teharot 4:12): If there is uncertainty with regard to firstborns, whether a human firstborn or an animal firstborn, whether with regard to kosher animals or non-kosher animals, i.e., the firstborn of a donkey, the burden of proof rests upon the claimant. The priest may not take the animal from its owner, or the redemption payment from the child’s father. And it is taught in that regard in a baraita: One is nevertheless prohibited from shearing and from working such animals, as their status as firstborns is uncertain.

וְהָא הָכָא דְּאָמַר תְּקָפוֹ כֹּהֵן – אֵין מוֹצִיאִין אוֹתוֹ מִיָּדוֹ, דְּקָתָנֵי הַמּוֹצִיא מֵחֲבֵירוֹ עָלָיו הָרְאָיָה, וְכִי לֹא תְּקָפוֹ – אֲסוּרִין בְּגִיזָּה וּבַעֲבוֹדָה.

Rav Hamnuna continued: And here, where the mishna effectively says that if a priest forcefully seized an animal whose status as firstborn is uncertain the court does not remove it from his possession, as it teaches that the burden of proof rests upon the claimant, the baraita states that even when the priest did not seize it, one is prohibited from shearing and working it. Evidently, the fact that the priest would remain in possession of the animal were he to seize it suffices to accord consecrated status to the animal even in a case where the priest did not seize it. The same is true in the case of the bathhouse, that even though the one who consecrated it had not taken possession of it, his consecration takes effect.

אֲמַר לֵיהּ רַבָּה: קְדוּשַּׁת בְּכוֹר קָאָמְרַתְּ – לְעוֹלָם אֵימָא לָךְ תְּקָפוֹ כֹּהֵן מוֹצִיאִין אוֹתוֹ מִיָּדוֹ, וַאֲפִילּוּ הָכִי אֲסוּרִים בְּגִיזָּה וּבַעֲבוֹדָה, דִּקְדוּשָּׁה הַבָּאָה מֵאֵלֶיהָ שָׁאנֵי.

Rabba said to him: This is no proof, as the cases are not comparable. You say a ruling concerning the sanctity of a firstborn. Actually, I will say to you with regard to an animal whose status as firstborn is uncertain, if a priest seized it, the court removes it from his possession, as there is no validity to ownership acquired by force. Accordingly, when the mishna states that the burden of proof rests upon the claimant, it means that the priest must bring proof that the animal is a firstborn. And nevertheless, one is prohibited from shearing and from working such an animal, as sanctity that emerges by itself is different. The sanctity of a firstborn does not result from an act of consecration; rather, the firstborn is consecrated by itself at birth. Therefore, the uncertainty with regard to its sanctity is intrinsic, and one is prohibited from using the animal as long as the uncertainty exists.

אֲמַר לֵיהּ רַב חֲנַנְיָה לְרַבָּה, תַּנְיָא דִּמְסַיַּיע לָךְ: הַסְּפֵיקוֹת נִכְנָסִין לַדִּיר לְהִתְעַשֵּׂר.

Rav Ḥananya said to Rabba: A halakha is taught in a baraita that supports your opinion that if a priest seizes an animal whose status as firstborn is uncertain, the court removes it from his possession: The animals whose status as firstborn is uncertain enter the pen to be tithed. They are brought in together with the rest of the young animals from whom the animal tithe is separated. This is so despite the fact that the halakhot of animal tithe do not apply to a firstborn animal.

וְאִי סָלְקָא דַעְתָּךְ תְּקָפוֹ כֹּהֵן אֵין מוֹצִיאִין אוֹתוֹ מִיָּדוֹ, אַמַּאי נִכְנָסִין לַדִּיר? נִמְצָא זֶה פּוֹטֵר מָמוֹנוֹ בְּמָמוֹנוֹ שֶׁל כֹּהֵן!

And if it enters your mind to say that in the case of an animal whose status as firstborn is uncertain that is seized by a priest, the court does not remove it from his possession, why do these animals enter the pen? Isn’t this a case of the owner exempting his property from the animal tithe with the property of a priest? If the animal belongs to the priests, it cannot be used as a tithe since one is obligated to separate the animal tithe from one’s own animals.

אֲמַר לֵיהּ אַבָּיֵי: אִי מִשּׁוּם הָא לָא תְּסַיְּיעֵיהּ לְמָר, הָכָא בְּמַאי עָסְקִינַן – כְּגוֹן דְּלֵית לֵיהּ אֶלָּא תִּשְׁעָה, וְהוּא דְּמָה נַפְשָׁךְ: אִי בַּר חִיּוּבָא הוּא, שַׁפִּיר קָא מְעַשַּׂר. אִי לָאו בַּר חִיּוּבָא הוּא, תִּשְׁעָה לָאו בַּר עַשּׂוֹרֵי נִינְהוּ.

Abaye said to him: If your support for Rabba’s opinion is due to that baraita, it does not support the Master. Here, we are dealing with a case where the owner has only nine animals and it, the animal whose status as firstborn is uncertain. Since whichever way you look at it, the owner of the animals is exempt: If that animal is not a firstborn, it belongs to the owner and is subject to the obligation to be tithed as part of a group of ten animals, and the owner tithes properly. And if the animal is a firstborn, it belongs to the priests and the animals are not subject to the obligation to be tithed, since the nine animals belonging to an owner are not subject to tithing.

הֲדַר אָמַר אַבָּיֵי: לָאו מִילְּתָא הִיא דְּאָמְרִי דִּסְפֵיקָא לָאו בַּר עַשּׂוֹרֵי הִיא, דִּתְנַן: קָפַץ אֶחָד מִן הַמְּנוּיִין לְתוֹכָן – כּוּלָּן פְּטוּרִין.

Abaye then said: That which I said is not correct, as, contrary to what I said, an animal whose status as firstborn is uncertain is not subject to tithing, as we learned in a mishna (Bekhorot 58b): If before one completed tithing his animals, one of those already counted jumped back into the pen among the animals that were not yet counted, all those in the pen are exempt from the obligation to be tithed, because each of them could be the animal that was already counted.

וְאִי סָלְקָא דַּעְתָּךְ סְפֵיקָא בָּעֵי עַשּׂוֹרֵי, לְעַשֵּׂר מִמָּה נַפְשָׁךְ: דְּאִי בַּר חִיּוּבָא הוּא – שַׁפִּיר מְעַשַּׂר, וְאִי לָאו בַּר חִיּוּבָא הוּא – נִפְּטַר בְּמִנְיָן הָרָאוּי.

And if it enters your mind that an animal whose status as firstborn is uncertain requires tithing, let him tithe the remaining animals, as whichever way you look at it, his tithing would be effective. Because if this group of ten emerging now renders the owner obligated in the animal tithe, he is tithing properly. And if it does not render the owner obligated in the animal tithe, as one of the ten is the animal that was previously counted, nevertheless, each of the other nine is exempt from animal tithe due to the principle of a tally fit to reach ten.

דְּאָמַר רָבָא: מִנְיָן הָרָאוּי פּוֹטֵר.

This principle is as Rava says: A tally fit to reach ten exempts oneself from the obligation to tithe. If one began counting animals for the purpose of tithing and when he began the tally the group was fit to be tithed, but ultimately he was unable to separate the tithe, for example, because one of the animals died and there were only nine left, those that were counted while the tally was fit to reach ten are exempt from the requirement of animal tithe, and the owner is not required to include them in the tithe the following year. Similarly, in a case where one of the ten animals was already counted, the other nine are nevertheless exempted by this count, as while he was counting them, the tally was fit to reach ten.