Beware Big Brother!
‘All The Defects Which Come About By Man…’
(Bechoros 35a-b)
Our daf serves as an example of how poskim determine halachos by learning sugyos that seemingly have no connection with the questions they are trying to answer. The Chacham Tzvi had a great difficulty with our gemara and because of it reached a conclusion with far-reaching applications.
Our sugya discusses defects in a firstborn kosher animal and the possibility that someone would intentionally cause a defect for monetary profit. (If the animal has a defect, a kohen can slaughter it anywhere and does not have to bother bringing it to the Beit Hamikdash.) One of the cases discussed concerns an unlearned kohen serving as a shepherd of an animal that developed a defect. The gemara says that we need not suspect that he caused the defect since he had nothing to gain thereby; he assumes the owner will prefer giving it to a learned kohen.
Makirei Kehunah
A well-known rule concerning gifts to kohanim is that if someone “adopted” a kohen – i.e., he always gives him the priestly gifts – that kohen becomes a makirei kehunah and the owner cannot give his gifts to any other kohen (see Bava Basra 123b). Therefore, if the shepherd kohen is the owner’s makirei kehunah, he surely anticipates that the firstborn will ultimately be his (even though he is unlearned) and hence should be suspected of causing a defect in the animal. Why, then, does the gemara not state clearly that the unlearned shepherd is not a makirei kehunah? It must be, argues the Chacham Tzvi (Responsa 70), that one is allowed to neglect his makirei kehunah and give his firstborn instead to a different kohen if that kohen is a talmid chacham.
The Disputed Bris
We now proceed to the case the Chacham Tzvi was trying to resolve. A certain person had all his sons circumcised by a certain mohel. While his wife was pregnant he died. She gave birth to a 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 he is similar to a makirei kehunah who has a right on all future gifts. However, the son contended that since his father is no longer alive, the mohel no longer has this right. The Chacham Tzvi agreed with the son. The halacha of makirei kehunah, he said, 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 consistently giving priestly gifts to a certain kohen is like a promise which cannot be violated (see Tosfos, Bava Basra, according to the gemara in Bava Metzia 49a). Therefore, the father who chose this mohel must continue to fulfill his “promise”; no one else, though (including his son) has to.
The Theory Of Relative Relationships
The Chacham Tzvi adds that there’s another reason to support the brother. If a relative and a talmid chacham approach someone for charity – who has priority? The Rambam asserts (Hilchos Matnos Aniyim 7:13) that a “poor person who is his relative takes precedence over everyone else.” The Chacham Tzvi contends that the Rambam meant that a relative also takes precedence over a talmid chacham. Let us link these facts. If, as we learned, it is permitted to bypass makirei kehunah in favor of a talmid chacham, how come a relative receives tzedakah before a talmid chacham? Nonetheless, the Rambam rules that he does. We thus see, the Chacham Tzvi concludes, that a relative takes precedence over everyone else. Hence, even if the father were alive, the mohel might not have performed the bris. The father would have had the right to appoint his son as the mohel – relative stake precedence – and would not be regarded as someone who “speaks a lie and does iniquity” (see Shulchan Aruch, Y.D. 264:1, and the Taz, 5).
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