Temurah 5:1-2

📖 Mishna

Mishna 5:1

משנה ה:א

Hebrew:

כֵּיצַד מַעֲרִימִים עַל הַבְּכוֹר. מְבַכֶּרֶת שֶׁהָיְתָה מְעֻבֶּרֶת, אוֹמֵר, מַה שֶּׁבְּמֵעֶיהָ שֶׁל זוֹ, אִם זָכָר, עוֹלָה, יָלְדָה זָכָר, יִקְרַב עוֹלָה. וְאִם נְקֵבָה, זִבְחֵי שְׁלָמִים, יָלְדָה נְקֵבָה, תִּקְרַב שְׁלָמִים. אִם זָכָר עוֹלָה, אִם נְקֵבָה זִבְחֵי שְׁלָמִים, יָלְדָה זָכָר וּנְקֵבָה, הַזָּכָר יִקְרַב עוֹלָה, וְהַנְּקֵבָה תִּקְרַב שְׁלָמִים:

English:

How may one employ artifice to circumvent the obligation to give the firstborn to the priest and utilize the animal for a different offering that he is obligated to bring? The owner approaches an animal that is going to give birth to its firstborn while that animal was still pregnant, and says: That which is in the womb of this animal, if it is male, is designated as a burnt offering. In that case, if the animal gave birth to a male, it will be sacrificed as a burnt offering. And in a case where he says: If it is female, it is designated as a peace offering, if the animal gave birth to a female, it will be sacrificed as a peace offering. In a case where the owner says: If it is male it is designated as a burnt offering, and if it is female it is designated as a peace offering, and the animal gave birth to a male and a female, the male will be sacrificed as a burnt offering and the female will be sacrificed as a peace offering.

Claude on the Mishna:

This mishna introduces a fascinating legal loophole regarding the firstborn animal (bechor). Normally, the firstborn male of a kosher animal automatically becomes consecrated and must be given to a kohen. But what if the owner wants to use that animal for a different obligation - say, a burnt offering (olah) he already owes?

The solution is to consecrate the fetus before birth with a conditional statement. Since the consecration happens before the animal is born (and before the automatic bechor sanctity takes effect), the owner’s declaration takes precedence. The timing is crucial: once the animal is born as a male, it would automatically become a bechor - but by then, it’s already been designated for a different purpose.

The mishna presents three scenarios: declaring it an olah if male (covering the case of a male birth), a shelamim if female (covering female birth), or both conditions together (covering twins of different genders). This demonstrates the halachic principle that prior designation can preempt automatic consecration, and that conditional statements regarding unborn animals are valid.

Key Terms:

• מַעֲרִימִים (ma’arimim) = Employing artifice/legal loophole - not deception, but clever use of halachic rules
• בְּכוֹר (bechor) = Firstborn male animal, automatically consecrated and given to kohen
• מְבַכֶּרֶת (mevakeret) = An animal giving birth for the first time
• עוֹלָה (olah) = Burnt offering - entirely consumed on the altar
• שְׁלָמִים (shelamim) = Peace offering - shared between altar, kohanim, and owner
• מַה שֶּׁבְּמֵעֶיהָ (mah sheb’mei’eha) = “That which is in its womb” - the unborn fetus

Mishna 5:2

משנה ה:ב

Hebrew:

יָלְדָה שְׁנֵי זְכָרִים, אַחַד מֵהֶן יִקְרַב עוֹלָה, וְהַשֵּׁנִי יִמָּכֵר לְחַיָּבֵי עוֹלָה, וְדָמָיו חֻלִּין. יָלְדָה שְׁתֵּי נְקֵבוֹת, אַחַת מֵהֶן תִּקְרַב שְׁלָמִים, וְהַשְּׁנִיָּה תִּמָּכֵר לְחַיָּבֵי שְׁלָמִים, וְדָמֶיהָ חֻלִּין. יָלְדָה טֻמְטוּם וְאַנְדְּרוֹגִינוֹס, רַבָּן שִׁמְעוֹן בֶּן גַּמְלִיאֵל אוֹמֵר, אֵין קְדֻשָּׁה חָלָה עֲלֵיהֶן:

English:

If the animal gave birth to two males, one of them will be sacrificed as a burnt offering and the second will be sold to those obligated to bring a burnt offering, who will sacrifice it as a burnt offering; and the money received from its sale is non-sacred. If the animal gave birth to two females, one of them will be sacrificed as a peace offering and the second will be sold to those obligated to bring a peace offering, who will sacrifice it as a peace offering, and the money received from its sale is non-sacred. If the animal gave birth to a tumtum, whose gender is unknown, or a hermaphrodite, which has both male and female sexual organs, both of which are unfit for sacrifice, Rabban Shimon ben Gamliel says: They are not imbued with sanctity.

Claude on the Mishna:

This mishna addresses complications arising from the conditional consecration discussed in 5:1. What if twins of the same gender are born? The owner said “if male, an olah” - but there are now two males. Which one is the olah?

The answer reveals an important principle: since we cannot determine which twin was designated, one is sacrificed as the owner’s olah, while the second is sold to someone else who needs an olah. Crucially, the sale money is chullin (non-sacred) - it doesn’t inherit the consecrated status. This is because the second animal’s sanctity is uncertain, and we resolve the uncertainty by having it still serve as an olah (for someone), while the proceeds are treated as ordinary money.

The final case involves a tumtum (gender unclear due to covered genitalia) or androginos (hermaphrodite). Rabban Shimon ben Gamliel rules that conditional consecration doesn’t apply to them at all. The owner’s statement was “if male… if female…” - but these creatures don’t clearly fit either category, so the condition was never fulfilled. They therefore have no sanctity and revert to ordinary chullin status.

Key Terms:

• חֻלִּין (chullin) = Non-sacred, ordinary/mundane status
• חַיָּבֵי עוֹלָה (chayvei olah) = Those obligated to bring a burnt offering
• טֻמְטוּם (tumtum) = Person or animal whose gender is indeterminate (genitalia covered)
• אַנְדְּרוֹגִינוֹס (androginos) = Hermaphrodite - having both male and female characteristics
• אֵין קְדֻשָּׁה חָלָה (ein kedushah chalah) = “Sanctity does not take effect” - remains non-sacred
• רַבָּן שִׁמְעוֹן בֶּן גַּמְלִיאֵל = Rabban Shimon ben Gamliel, the Nasi (leader) of the Sanhedrin

⚖️ Halacha

Practical Law from this Mishna

The laws discussed in this mishna concern Temple-era sacrificial procedures and the status of firstborn animals. While the Temple practices are not currently applicable, the laws of bechor (firstborn) still apply today in limited ways.

Circumventing Bechor through Prior Consecration

Source in Mishna: 5:1

Rambam — Hilkhot Bechorot 4:1-2

The Rambam codifies that one may preemptively consecrate an unborn animal before the automatic bechor sanctity takes effect. The conditional statement (“if male, an olah; if female, a shelamim”) is valid because:

1. Consecration of an unborn animal is halachically effective
2. The earlier consecration takes precedence over the later automatic bechor status
3. Conditional consecrations are binding when the condition is fulfilled

Key Principle: The firstborn sanctity only applies when no prior consecration exists. By acting first, the owner can redirect the animal to fulfill other obligations.

Twins and Uncertain Cases

Source in Mishna: 5:2

Rambam — Hilkhot Bechorot 4:3

When twins are born and the conditional consecration only covers one animal, the Rambam rules:

• One animal fulfills the owner’s obligation
• The second is sold to others with similar obligations
• The sale proceeds are chullin because the sanctity was conditional and unclear which animal it applied to

Tumtum and Androginos

Source in Mishna: 5:2

Rambam — Hilkhot Bechorot 2:4-5

The Rambam rules that a tumtum or androginos born as a firstborn is NOT treated as a definite bechor. Since the Torah’s laws of bechor specifically apply to males, and these categories don’t definitively fit “male,” they are treated with uncertainty.

Similarly for conditional consecration: since the condition specified “male” or “female,” creatures of indeterminate gender don’t fulfill either condition, and no sanctity takes effect.

Summary of Rulings

Note: While Temple sacrifices are not currently offered, the laws of firstborn animals still have practical relevance today. A firstborn male kosher animal has sanctity and must be treated accordingly, though it cannot be sacrificed without the Temple.

🖼️ Visuals

Key Disputes

Key Concepts