Beware, Big Brother!
‘He Isn’t Suspected…’
(Bechoros 35)
Our sugya discusses the possibility of a kohen intentionally causing a defect in a firstborn kosher animal in the hope that the owner will give him the animal (which he can then immediately slaughter without having to go to the Beis HaMikdash). The Gemara states, though, that we don’t suspect an unlearned kohen who is a shepherd of doing so since he assumes the owner will prefer to give the animal to a learned kohen.
Makirei Kehunah
A well-known rule concerning gifts to kohanim is that if someone “adopted” a kohen to give him his gifts, that kohen becomes a makirei kehunah and the owner cannot give his gifts to another kohen (see Bava Basra 123b). Therefore, if the shepherd kohen is the owner’s makirei kehunah, he should anticipate that the animal will be given to him. If so, why doesn’t the Gemara state that we don’t suspect a kohen shepherd of purposely inflicting the defect unless he a makirei kehunah?
Apparently, writes the Chacham Tzvi (Responsa 70), it doesn’t add this proviso because a person, in fact, need not always give his priestly gifts to his makirei kehunah. If another kohen is a talmid chacham, he is allowed to give it to him instead. And that’s why even his makirei kehunah wouldn’t inflict a blemish intentionally if he isn’t a talmid chacham since he can’t be sure that the animal will be given to him.
The Disputed Bris
A certain man was accustomed to hiring the same mohel every time he had a son. This man, though, died while his wife was pregnant with one of his sons, and after she gave birth, the baby’s older brother wished to perform the circumcision. The mohel claimed that he should do it since the father had always honored him in the past with this duty. He argued that he was like a makirei kehunah. The son countered that no obligation existed now that his father had passed away.
The case was presented to the Chacham Tzvi who reasoned as follows: The halacha of makirei kehunah is based on Tzefanyah 3:13: “The remnant of Israel will not do iniquity and will not speak a lie.” A person may not break his word; giving priestly gifts to a certain kohen amounts to a promise that cannot be broken (see Tosfos, Bava Basra, ibid., according to Bava Metzia 49a). But the son in this case never made any commitments; only the father did.
The Theory of Relative Relationships
The Chacham Tzvi presented another argument in support of the son’s position: The Rambam writes in his Hilchos Matnos Aniyim (7:13), “A poor person who is his relative takes precedence over everyone else.” Presumably that means even a talmid chacham.
Now if a relative takes precedence over a talmid chacham (in the laws of charity) and a talmid chacham takes precedence over a makirei kehunah (in the laws of bechor), presumably a relative takes precedence over a makirei kehunah (in the laws of bechor). Why? Because, argues the Chacham Tzvi, there is no greater act of charity than involving a relative in a mitzvah.
Thus, concludes the Chacham Tzvi, even if the father were alive, he would be allowed to appoint his son to perform the circumcision instead of the mohel he had engaged for his other sons (see Shulchan Aruch, Y.D. 264:1, and the Taz, s.k. 5).
