QUESTION: The Gemara earlier (31b) cites a Beraisa that states that the meat of an animal of Ma'aser Behemah that belongs to orphans may be sold. Similarly, an animal of Ma'aser Behemah that was slaughtered may be sold "b'Havla'ah" -- together with its hide, Chelev, tendons, and horns of the animal. RASHI (DH Mavli'o) explains that since it is forbidden to sell the meat by itself but it is permitted to sell the other parts of the animal, the other parts should be sold at a higher price, and the meat then may be included in the sale.

Abaye explains that the Beraisa means that the Ma'aser Behemah of orphans may be sold "b'Havla'ah." This implies that, according to Abaye, the Ma'aser Behemah of an adult may not be sold even b'Havla'ah. The Gemara explains the difference between this Halachah and the Halachah in the case of one who wants to acquire an Esrog from an Am ha'Aretz during the Shemitah year, when the Am ha'Aretz does not agree to give it as a present. One may not buy an Esrog of Shemitah from an Am ha'Aretz, because the money paid for it acquires the Kedushah of Shemitah, and the Am ha'Aretz will not be careful to treat the money with the laws of Shemitah. Therefore, one should buy the Esrog "b'Havla'ah" with a Lulav, in which case the purchase of the Esrog is permitted because an Esrog does not cost a lot of money (Rashi 31b, DH Hasam) and it is not noticeable that it has been sold together with the Lulav. In contrast, it is obvious that one would not sell the hide of an animal for a price similar to the price of the meat, and thus it is apparent to the onlooker that the meat in fact was sold for the high price. For this reason one is forbidden from selling b'Havla'ah the meat of Ma'aser Behemah.

Rava explains the Beraisa differently. According to Rava, the Beraisa is saying that the Ma'aser Behemah of orphans may be sold in a normal way, while a slaughtered animal of Ma'aser Behemah of an adult may be sold b'Havla'ah with the hide, Chelev, tendons, and horns. Rava derives this from the verse which discusses an animal made as Temurah for a Korban: "Both the original animal and the one given in exchange for it will be Kodesh" (Vayikra 27:10). The verse implies that an animal can be made Temurah for a Korban only when the Korban is alive, but not after it has been slaughtered. Similarly, an animal cannot be redeemed while it is alive, but after Shechitah it can be sold. From here Rava learns that mid'Oraisa the meat of an animal of Ma'aser Behemah may be sold.

The Gemara continues (32a) and says that Rav Shmuel bar Rav Yitzchak agrees with Rava. Rav Shmuel says, "How do we know that Ma'aser Behemah of orphans may be sold in a normal way?" He answers that this is derived from the verse, "However, according to the desire of your soul you may slaughter and eat meat, according to the blessing that Hash-m your G-d will give you" (Devarim 12:15). What is a blessing that exists only after Shechitah, but not when the animal is alive? This must refer to Ma'aser Behemah. Rashi (DH Eizehu) explains that Ma'aser Behemah is not a blessing when it is alive, because even if it becomes blemished it may not be redeemed and sold. However, after Shechitah the blessing is that mid'Oraisa the animal may be sold, and, for orphans, the Rabanan even waived the Isur d'Rabanan against selling it after Shechitah (Rashi DH Ela).

TOSFOS (31b, DH v'Af) notes that although the Gemara says that Rav Shmuel agrees with Rava, Rav Shmuel derives the Halachah from a different verse. Why does Tosfos mention only this difference between Rava and Rav Shmuel? Tosfos also should mention the important Halachic difference between them: Rava maintains that the Ma'aser Behemah of an adult may be sold b'Havla'ah, while Rav Shmuel makes no mention of this law.

ANSWER: The SHAI LA'MORA answers with an important insight into the Sugya. He suggests that the words of Rav Shmuel also allude to the Halachah that the Ma'aser Behemah of an adult may be sold b'Havla'ah. He explains that Abaye forbids the sale of Ma'aser Behemah, even b'Havla'ah, because it is obvious to onlookers that the price is too high for merely the hide and other parts, and it is obvious that the meat is being sold as well. In such a case, selling the meat b'Havla'ah is a form of "Ha'aramah," a trick to enable the sale of Ma'aser Behemah, and therefore it is forbidden. However, Ha'aramah is not always forbidden. The Mishnah in Ma'aser Sheni (4:4) states that one may do Ha'aramah with Ma'aser Sheni in order to avoid the obligation to pay the additional fifth (Chomesh) of the value of the produce (which one must add when he redeems his own Ma'aser Sheni). One may give the produce to his own adult children for them to redeem for him, and thereby circumvent the requirement to pay the Chomesh. The TOSFOS YOM TOV cites the Yerushalmi that says that the reason why one is allowed to use Ha'aramah to avoid the Chomesh when redeeming Ma'aser Sheni is that the verse uses the term "blessing" with reference to Ma'aser Sheni (Devarim 14:24).

Similarly, Rav Shmuel derives the Halachah that one may sell Ma'aser Behemah of orphans in a normal manner from the fact that it is called a "blessing." Just as one may redeem Ma'aser Sheni with Ha'aramah because it is called a "blessing," one may sell the Ma'aser Behemah of orphans in the normal manner because it is called a "blessing." Moreover, the fact that it is called a "blessing" also teaches that an adult may sell Ma'aser Behemah through Ha'aramah (by selling it b'Havla'ah). Accordingly, Rav Shmuel agrees with Rava, and therefore Tosfos does not mention any other difference between the two Amora'im.

The Shai la'Mora asserts that this approach refutes the opinion of the MEKOR MAYIM CHAYIM (YD 117) who maintains that although the SHULCHAN ARUCH (YD 117) states that one may not conduct business with the meat of swine, nevertheless one is permitted to sell it together with other items b'Havla'ah. The Shai la'Mora states that since selling b'Havla'ah is permitting only for something that the Torah calls a "blessing," it remains forbidden to sell b'Havla'ah the meat of swine (which the Torah certainly does not call a "blessing"). (D. BLOOM)

OPINIONS: The Mishnah and Beraisa record a dispute between Beis Shamai and Beis Hillel with regard to whether a Yisrael may eat the meat of a blemished Bechor. Beis Shamai maintains that a blemished Bechor still has Kedushah and may be eaten only by a Kohen. Beis Hillel, according to Rebbi Akiva, maintains that a Kohen may give meat from a blemished Bechor even to a Nochri. According to the Tana Kama in the Beraisa, Beis Shamai permits a Yisrael to eat a blemished Bechor, but he does not permit it to a Nochri. What is the Halachah?

(a) TOSFOS (DH Pasak) and the RAMBAM (Hilchos Bechoros 1:3) rule that a Bechor of a Kosher animal that has a Mum belongs to the Kohen, who may eat it in any place, sell it, or feed it to whomever he wants, even to a Nochri, since it is considered Chulin.

Tosfos adds that a Nochri may eat the meat of such a Bechor only in a case in which a Yisrael could eat the meat of such a Bechor. If, however, the Bechor died without Shechitah, was slaughtered before a Mumcheh permitted it, or was found to be a Tereifah, it is prohibited to a Nochri as well since a Yisrael cannot eat it.

(c) Tosfos cites the opinion of the BEHAG who rules that a blemished Bechor may be given to a Yisrael but not to a Nochri.