Daf Yomi - Beware Big Brother!

Beware Big Brother!

“All the Defects Which Come About by Man…”

(Bechoros 35a-b)

Our daf serves as an example of how poskim decided different halachos by learning Talmudic sugyos that seemingly have no connection with the topics brought before them. The ChachamTzvi had a great difficulty in our Gemara, and because of it he reached a conclusion with far-reaching applications.

Our sugya discusses defects in a firstborn kosher animal and the possibility that someone who could profit therefrom would intentionally inflict a defect. One of the cases discussed concerns an unlearned kohen whoserves as a shepherd of an animal that develops a defect. The Gemara says that we need not suspect that he caused the defect, as he would assume that he has no hope of being given the animal since the owner will prefer to give it to a learned kohen. On the other hand, in a case where the shepherd anticipates that the animal will ultimately be his, then the suspicion arises that he may cause a defect so that when he gets it, he may slaughter it anywhere and would not have to trouble himself by bringing the animal to the Beis HaMikdash.

Makirei Kehuna

A well-known rule concerning gifts to kohanim is that if someone “adopted” a kohen to receive his priestly gifts, that kohen becomes a makirei kehunah and the owner must not give his gifts to another kohen (see Bava Basra 123b). Therefore, if the shepherd-kohen is the owner’s makirei kehunah, he surely anticipates that the firstborn will be given to him, and as such will be suspected of causing the defect. Why, then, does the Gemara not add a condition that would remove suspicion from the shepherd-kohen – namely, that our case concerns one who is not a makirei kehunah? It must be, concludes the ChachamTzvi (Responsa 70), that one is allowed to neglect his makirei kehunah and give it instead to someone who is a talmid chacham. Therefore, the shepherd-kohen is not at all sure that the firstborn will be given to him, in spite of having received the owner’s previous firstborn animals (see ibid. concerning Tosafos s.v. meimar).

The Disputed Bris

We now proceed to the case brought before the Chacham Tzvi. A certain person was accustomed to have all his sons circumcised by a certain mohel. While his wife was pregnant, he passed away. She gave birth to another boy. As the bris approached, the usual mohel wanted to circumcise the newborn orphan boy. However, the baby’s big brother declared that he wanted to perform the circumcision. The mohel claimed that as the father had honored him with circumcising all his sons, he should not lose this mitzvah, similar to makirei kehunah where a person is used to giving a certain kohen his gifts and should continue to do so. However, the son contended that the choice was his father’s and, in his absence, the commitment had no validity.

The ChachamTzvi agreed with the son and offered a halachic explanation: The halacha of makirei kehunah is based on the verse “The remnant of Israel will not do iniquity and will not speak a lie” (Tzefanyah 3:13). A person must not change his statements, and as he is accustomed to giving to a certain kohen, that is like a promise which must not be reneged upon (see Tosafos, Bava Basra, ibid., according to the Gemara in Bava Metzia 49a). Therefore, the father who chose the mohel is the one who must fulfill his voluntarily accepted commitment, but others who never made that choice have no such obligation.

The Theory of Relative Relationships

The ChachamTzvi adds that there is another basis to support the brother. A person with money for charity is approached by two poor people, one his relative and the other a talmid chacham. To whom should he give the tzedakah? Rambam asserts (Hilchos Matnos Aniyim 7:13): “A poor person who is his relative takes precedence over anyone else.” The ChachamTzvi contends that Rambam meant that a relative also takes precedence over a talmid chacham.

Let us connect the facts. If, as we learned, it is permitted to bypass makirei kehunah in favor of a talmid chacham, the same would surely apply to a relative who should take precedence over a talmid chacham. The ChachamTzvi concludes that if when it comes to tzedakah,a relative takes precedence over everyone, how much more so does this principle pertain to mitzvos, as there is no greater charity than granting someone a mitzvah, and here too one should prefer relatives. It thus turns out that even were the father alive, he would be allowed to appoint his son as the mohel,and in doing so, he would not be regarded as someone who speaks a lie and does iniquity (see Shulchan Aruch, Y.D. 264:1, and the Taz, s.k. 5).