1) MALKUS FOR SELLING A "BECHOR" AFTER IT IS SLAUGHTERED
QUESTION: The Gemara teaches that a Korban Pesach slaughtered at any time other than Erev Pesach is a valid Korban Shelamim, as long as it is not slaughtered with intention that it should serve as a Korban Pesach. This is derived from the verse, "If his Korban, for a Zevach Shelamim to Hash-m, is from the flock..." (Vayikra 3:6; see Insights to 8b).
The Gemara asks, why does the Korban not have all of the Halachos of the Korban that was intended? Why does it have the Halachos of a Shelamim? Rebbi Avin answers that a Korban which can be eaten by anyone (Korban Pesach) can become another type of Korban which is fit to be eaten by anyone (Shelamim), but it cannot became a Korban which is not eaten at all (Olah) or a Korban eaten only by Kohanim (Chatas). Rebbi Yosi bar Avin answers that one form of Kodshim Kalim (Korban Pesach) can become another form of Kodshim Kalim (Shelamim), but it cannot become a form of Kodshei Kodashim (such as an Olah).
Rav Yitzchak bar Savrin questions these explanations. Among his questions he asks that according to Rebbi Yosi bar Avin, one who intended that his Korban should be a Bechor should have to treat it with the Halachos of a Bechor, since a Bechor is also Kodshim Kalim, like Shelamim. The Gemara asks what difference does it make if the Korban has the Halachic status of a Bechor or of a Shelamim. The Gemara answers that one difference is the prohibition of "Lo Yiga'el" (Vayikra 27:28), which applies to a Bechor but not to a Shelamim. The Gemara in Bechoros (32b) teaches that this prohibition is the same as that of Temurah, and one who sells a Bechor is punished with Malkus. There is no such prohibition which obligates Malkus in the case of a Shelamim.
TOSFOS (DH l'Mai) has difficulty with the Gemara's practical difference between whether the Korban is considered a Bechor or a Shelamim. The Gemara is discussing a difference which applies after the Korban is slaughtered, and which depends on which Korban was intended at the time of the Shechitah. The Gemara in Bechoros (ibid.) clearly states that the Torah's prohibition against selling a Bechor applies only while the animal is alive! If this Korban Pesach becomes a Bechor only when it is slaughtered with the intent that it be a Bechor, then, obviously, selling it while it is alive -- before the Shechitah -- will not constitute a transgression of "Lo Yiga'el."
ANSWERS:
(a) The SHITAH MEKUBETZES quotes the RIVA who explains that although the animal becomes a Bechor only when it is slaughtered, it still can live a short time longer. This is apparent from the Gemara in Yevamos (120b) which says that if both Simanim of a person are cut, he still is considered alive at that moment. Accordingly, if the owner would sell the animal immediately after he slaughters it with intent that it be a Bechor, then he indeed would transgress the Isur of "Lo Yiga'el" and be punished with Malkus, if the animal has the Halachic status of a Bechor and not a Shelamim.
(b) The SEFAS EMES points out that, as Tosfos explains, the source that Malkus is administered only when a Bechor is sold while still alive is the Gemara in Bechoros (32b). The Gemara there arrives at this conclusion by comparing the prohibition of Temurah (attempting to exchange a Korban's Kedushah onto a different animal) to Bechor. Just as the Torah's prohibition against selling an animal involved in a transfer of Kedushah (Temurah) applies only while it is alive, the prohibition against redeeming a Bechor also applies only while it is alive. Rav Yitzchak bar Savrin asks from many cases of Korbanos, which he maintains should retain their original Halachic status regardless of the specific intent that the owner had while slaughtering them. One of these cases is that of Temurah. The Sefas Emes suggests that all of these questions were raised at the same time. Since Rav Yitzchak bar Savrin assumes that an animal can become a Temurah after it is slaughtered, he clearly does not agree with the source for the law in Bechoros. Since the law is that one who sells a Temurah animal after its death is punished with Malkus, one who sells a Bechor after death should be punished with Malkus as well. When the Gemara answers the questions of Rav Yitzchak, the Gemara in Bechoros is accepted as the Halachah, and thus there is no Torah prohibition against selling a Bechor after its death.
(c) In a similar vein, the MEROMEI SADEH answers that Tosfos is not taking into account that Abaye in Bechoros (31b) and Ravina in Bava Kama (53b) both argue with Rava and maintain that the prohibition against selling a Bechor applies even after its death, and Rav Yitzchak is following the opinion of those Amora'im. (Y. MONTROSE)
9b----------------------------------------9b
2) THOUGHTS DURING ONE "AVODAH" ABOUT A DIFFERENT "AVODAH"
OPINIONS: The Gemara records a dispute between Rebbi Yochanan and Reish Lakish regarding a person who -- while slaughtering a Korban Chatas -- has in mind to perform the Zerikah later with intent that it should be a different type of Korban. Rebbi Yochanan says that the Chatas is Pasul, because the thought that one has in mind during one Avodah about a different Avodah is able to invalidate a Korban. Reish Lakish disagrees and maintains that a thought about a different Avodah cannot invalidate the Korban.
What is the reasoning behind Rebbi Yochanan's opinion? If the present Avodah was done properly, then why does a thought about a later Avodah invalidate the Korban?
(a) The RAMBAM (Hilchos Pesulei ha'Mukdashin 15:10) rules like Rebbi Yochanan and explains that the thought which the person has during Shechitah is considered as though it took place during Zerikah, and thus the Korban is invalid.
The source for the Rambam's explanation seems to be the Gemara in Pesachim (78b). The Gemara there discusses the law that one is not allowed to slaughter a Korban Pesach with intention that a person who is unable to eat a k'Zayis of the meat (such as an old or sick person; see RASHI there, DH Ein) should be included in the group that will eat the Korban. If he has such intention during the Shechitah, the Korban is Pasul. The Gemara says that if -- while performing the Shechitah of the Korban Pesach -- a person has in mind that he will perform the Zerikah for a person who is unable to eat a k'Zayis of the Korban, the Korban is still fit to be eaten and used for the Mitzvah of Korban Pesach. The Rambam rules this way in Hilchos Korban Pesach (2:6). The Gemara's logic apparently is that the person's thought, during Shechitah, about other people eating the Korban Pesach is considered to have taken place during the Zerikah, when such a thought does not invalidate the Korban. If the thought, on the other hand, would be considered to have taken place during the Shechitah, then the Korban should be Pasul. This shows that a thought during Shechitah about Zerikah is considered to be taking place during Zerikah.
The KEHILOS YAKOV has difficulty with the words of the Rambam. The Gemara later (10a) records another, similar argument between Rebbi Yochanan and Reish Lakish regarding one who slaughters an animal with intent to do the Zerikah later for the sake of idolatry. Rebbi Yochanan says that because intent during one Avodah regarding another Avodah is effective, the animal becomes forbidden from benefit immediately. If the Rambam considers a thought about Zerikah during Shechitah to have taken place during Zerikah, then the animal should not be forbidden from benefit until after the Zerikah! Moreover, if the person never performs the Zerikah, then the animal should not be forbidden even according to Rebbi Yochanan!
The Kehilos Yakov explains that the intent of the Rambam is that once the person has the wrongful thought of the Zerikah in mind during the Shechitah, it is considered as though the Zerikah has already occurred with that thought. According to Rebbi Yochanan, the animal is forbidden because the Zerikah is deemed to have already occurred.
(b) TOSFOS in Pesachim (61a, DH Shechato; see Insights to Pesachim 61:2) discusses Rav Chisda's opinion that if one slaughters a Korban Pesach with intent that Arelim (uncircumcised people) should also gain atonement from the Korban (during the Zerikah, the process of the Korban that atones), then the Korban is Pasul. The Gemara later qualifies this and says that if one has in mind during the Zerikah itself that Arelim should gain atonement, then the Korban Pesach is valid. This is because thoughts during Zerikah about who will eat the Korban do not invalidate the Korban; only such thoughts during Shechitah invalidate the Korban. Tosfos understands that this shows that having a thought during Shechitah about Zerikah is considered as though the thought occurred during the Shechitah.
How, though, does Tosfos understand the Gemara in Pesachim (78b) which is the source for the Rambam's ruling? Tosfos explains that the correct text in that Gemara should read that the Zerikah itself was done for people who were not part of the group, and not that the Shechitah was done with intent to perform the Zerikah for people not in the group ("Shechato l'Ochlav v'Nizrak Damo she'Lo l'Ochlav," instead of "Shechato Lizrok Damo she'Lo l'Ochlav").
However, the question now must be asked on the Rambam's explanation. How does the Rambam understand the Gemara in Pesachim (61a) which discusses slaughtering the Korban Pesach for Arelim?
RABEINU CHAIM HA'LEVI (Hilchos Korban Pesach 2:6) points out that the Gemara in Pesachim implies that Rav Chisda's opinion -- that a thought of gaining atonement for Arelim during the Shechitah of the Korban Pesach invalidates the Korban -- is based on the prohibition of Shinuy Ba'alim, and is not a special law regarding the Korban Pesach. The problem of Shinuy Ba'alim, where the thought of changing (or adding to) the owner of the Korban invalidates the Korban, applies only when the "new owner" has some potential connection to the obligation to bring that Korban. Arelim are considered to be connected to the obligation to bring the Korban Pesach, since they could perform Bris Milah and then be obligated to bring the Korban. Therefore, Shinuy Ba'alim applies to a thought of bringing the Korban for Arelim.
This explains the view of the Rambam, who says that this type of thought is considered to have taken place during Zerikah. Having a thought to include Arelim in a Korban Pesach (the prohibition against including people who cannot fulfill the Mitzvah in the group of a Korban Pesach) is only a problem during Shechitah, but not during Zerikah. Rav Chisda -- who says that the Korban is Pasul -- maintains that this Pesul is due to the general prohibition of Shinuy Ba'alim, which applies during Zerikah. On the other hand, the Gemara later in Pesachim (78b) is discussing an old or sick person, who does not have the ability to heal himself. Since he cannot heal himself, he is deemed to have no connection with this Korban, and therefore he cannot be an alternate "owner" who would cause the Korban to become Pasul merely through Shinuy Ba'alim. The Rambam understands that this is why the Korban that is slaughtered in order to atone for an old or sick person is valid, while Rav Chisda rules that a Korban that is slaughtered in order to atone for Arelim is invalid. (Y. MONTROSE)