Talmud for Bekhorot 2:10

⁴⁶Mishnah Bekhorot 2:4. It is not totally clear what mortmain conditions for a shepherd are; cf. the extensive discussion in S. Lieberman, תוספתא כפשוטה בבא קמא-בבא מציעא New York 1988, pp 217–219.
The Yerushalmi Baba Meṣi‘a 5:7, quoting Tosephta Bekhorot 5:1,14, explains: “What is a mortmain flock? If [the owner] had 100 sheep and said [to the shepherd]: these are stipulated to be worth 100 gold denars, their lambs, their milk, and their shearings are yours, if they die, you are responsible, and for each one you give me a tetradrachma at the end, it is forbidden.” It is forbidden to the shepherd to receive a flock under these conditions from a Jew since most owners will structure the contract so they will make money, which turns the final payment (which accompanies the return of the flock to the owner) into a money-making proposition which looks like interest since the shepherd pays for the use of the flock which he received on credit. It is forbidden to pay interest to Jews. The same kind of contract is permitted with Gentiles. There, we have stated: “If somebody receives [a flock] under mortmain conditions from a Gentile, the young are free, the young’s young are obligated.”⁴⁷The parallel text is in Baba Meṣi‘a 5:7 (fol. 10b). Rebbi Jeremiah asked: There you say, the young are for the first, and here you say, the young are for the second⁴⁸In the Mishnah in Bekhorot, lambs are exempt because they belong to the Gentile even though the entire flock is the shepherd’s responsibility whereas the Mishnah here states that mortmain lambs belong to the husband who also carries the same responsibility as the shepherd.! Rebbi Yosa said, there, because the property rights are with the first, the young belong to the first. But here, because the property rights are with the second, the young belong to the second⁴⁹The contract of the shepherd specifies that the flock must be returned intact at a specified time; the interest of the Gentile is there all the time. In the case of marriage, if the wife predeceases her husband, he inherits from her; his obligation to return the dowry is conditional..

Rebbi Abbahu⁵⁹Here we discuss the last part of the Mishnah, the disagreement between the Sages and R. Eliezer on whether it is possible to transfer property of a single ear or whether it is necessary first to give the entire stack to the poor. in the name of Rebbi Simeon ben Laqish, this follows Rebbi Yose⁶⁰Bar Ḥalaphta, the Tanna., as we have stated there⁶¹The Mishnah Bekhorot 2:6 deals with a sheep whose first lambs are male twins of which it is unknown which one was the firstborn. It is then decreed that one of them be given to the Cohen, and the other one (who might be the firstborn and, if without blemish, should be brought as sacrifice) should graze until it develops a bodily defect and then can be eaten. The first Tanna (representing R. Meïr) insists that the second animal is subject to the rule of obligatory gifts to the Cohen as profane meat. Rebbi Yose disagrees, and in a baraita (also Babli Bekhorot18a) explains that every animal whose exchange is in the hand of the Cohen is freed from the rule of obligatory gifts. The Babli explains, in an apparent disagreement with the interpretation of the Yerushalmi, that this is not a general principle but it underlines the special status of the second animal which, as a potential sacrifice, may not be shorn or used for work.: “For Rebbi Yose says that everything whose replacement is in the hand of the Cohen is freed from the obligatory gifts, but Rebbi Meïr obligates him.” Rebbi Abba said, the words of Rebbi Yose imply that he has to empower the priest⁶²It is not enough to designate an ear as tithes; it must actually be delivered into the hand of the Cohen.. Rebbi Yose⁶³The later Amora. said, the statement of Rebbi Abba contradicts Rebbi Simeon bar Laqish since we have stated here: “He has to give the poor rights to the entire stack; then he gives tithes for one ear and gives to him.” Rebbi Abba said, the words of Rebbi Yose imply that he has to empower the priest, hence⁶⁴This is the Amora Rebbi Yose’s inference. this is not from the words of Rebbi Yose. Rebbi Mana said, the Mishnah itself testifies that it is by Rebbi Yose⁶⁵Everybody agrees that transfer of property must take place, but not necessarily delivery; the Tanna R. Yose requires only transfer of property rights.. The first Tanna wants to say that he transfers as property to the poor not the entire stack but only one ear. The other Tanna wants to say that he transfers the entire stack as property to the poor. The first Tanna wants to say that this⁶⁶The symbolic transfer of the entire stack to the poor as a “gift on condition that it be returned” is considered a subterfuge without legal validity. is like the transfer of property from one’s right hand to his left hand; it is no transfer. The other Tanna wants to say that it is not transferring property from one’s right hand to his left hand; it is transfer⁶⁷And is legally valid..

Rebbi Jeremiah asked: There¹²⁰Mishnah 5, which forbids handing over calves to be raised unless the rancher is paid for his work. you say that a paid trustee who would be responsible for accidents is forbidden. But here¹²¹Mishnah 6, which allows such contracts for adult animals without restrictions. you say that a paid trustee who is responsible for accidents is permitted. Does it not happen that an unpaid trustee agrees to be like a borrower^81,An agent is not liable for accidents only if he strictly acts in the principal’s interest. If he is permitted to use the other’s money for his own trades, be becomes liable as a borrower while remaining an agent (Babli 94a).¹²²The quote from Halakhah 5 is slightly out of place here. Since the rancher is supposed to use the animal for his purposes, he cannot be under the rules of the unpaid trustee; he is a paid trustee. But this is really irrelevant for the question; the main point is that the transaction involves an element of risk which shields it from the laws of interest, Note 115.? Rebbi Jeremiah asked: There¹²³Mishnah Bekhorot 2:4, quoted in the Babli 70b. The offspring of a Gentile’s mortmain animals in the hands of a Jewish tenant farmer are not subject to the laws of the firstling since the mothers are considered the Gentile’s property. you say that mortmain belongs to the first, but here you say to the second¹²⁴In the Halakhah here, the offspring is defined as the tenant’s property.. Rebbi Yose said, there since the essence belongs to the first, the offspring are counted for the first¹²⁵Since the owner can repossess the mother if the tenant is in arrears with his payment, the Gentile retains a monetary interest in the mother. This is enough to free the offspring from the rules of firstlings.. But here the essence belongs to the second since the offspring belong to the second¹²⁶As explained in the Halakhah. For the majority opinion in Mishnah Bekhorot 2:4, the offspring’s offspring is subject to the rules of firstlings for the same reason..

HALAKHAH: “If somebody lent money to a Cohen,” etc. Rebbi Abbahu in the name of Rebbi Simeon ben Laqish: This follows Rebbi Yose; as we have stated there¹³²Mishnah Bekhorot 2:8. The Mishnah speaks of a rancher whose ewe gave birth to twin lambs, one of which is a firstling but it is not known which. A firstling has to be given to a Cohen (Deut. 15:19); it may not be shorn (or, if a calf, used for work). The rancher can fulfill his monetary obligation by giving one of the two lambs to the Cohen; the other lamb has to be put out to graze until it develops a defect; then it can be eaten by its owner (Deut. 15:21–22). If it was known which lamb was a firstling, that one would have to be given to the Cohen and if the other lamb were slaughtered, some parts would have to be given to a Cohen (Deut. 18:3). But in the case under consideration, R. Yose holds that no gifts to the Cohen are due since potentially the lamb was the Cohen’s and a Cohen who slaughters does not have to give away anything. He equates potential possession and real possession. The application to the Mishnah here is that the Cohen can dispose of the heave as if he had received it.
R. Meїr holds that the gifts are due since they would be due if it was known which one was the firstling.
In the Babli, 30a, this is Ulla’s opinion.: “Rebbi Yose says, anything whose replacement is in the Cohen’s hand is freed from the gifts, but Rebbi Meїr obligates.” Did Rebbi Yose not speak only if it did exist? But here, he still needs to sow¹³³Since nobody can acquire anything nonexistent (Ketubot 5:5, Note 113), R. Yose’s argument cannot be applied to our case.! Rebbi Abbahu in the name of Rebbi Joḥanan: The Mishnah speaks of acquaintances of Cohanim or Levites¹³⁴The expression is Biblical (2K. 12:6,8); it refers to people who regularly give all their priestly gifts or tithes to the same Cohen or Levite. Then heave and tithes have the status of annuities and cannot be said to be nonexistent.
In the Babli, 30a, this is Rav’s opinion. Samuel requires that heave or tithes be actually given to a third party Cohen or Levite, acting as recipient for the debtor, who then returns the produce to the farmer. That opinion has no parallel in the Yerushalmi.. But did we not state “a poor person”? Does a poor person have acquaintances¹³⁵The tithe of the poor has to be given to the first poor person who applies.? There came a case before Rebbi Immi: A Cohen or Levite who owed money to an Israel and told him¹³⁶After the loan was given, the debtor then asked to be excused from repayment using the method outlined in the Mishnah., separate from my part for my account. He said to him, did we not state: “If somebody lent money to a Cohen, a Levite, or a poor person to separate on their account.” When the loan was given under these conditions. Therefore, not if it was not a condition of the loan! Rebbi Ze‘ira said, even if it was not a condition of the loan. Rebbi Ze‘ira’s force is from the following¹³⁷Tosephta Demay 7:15. The Levite cannot tell the Israel to arrange with other farmers that they pay him to give tithes for them and deduct the sum from the Levite’s debt, since no Levite can dispose of another Levite’s tithes.: “Similarly, a Levite who owed money to an Israel and said to him, separate on my account; only he should not collect and separate because no Levite makes a Levite.” He only said, he should not separate¹³⁸Missing in the text: Other people’s tithes., but from his own he may separate.