1) WHAT IS DONE WITH "MA'ASER BEHEMAH" NOWADAYS
QUESTIONS: The Gemara (end of 60b) quotes three opinions in the case of two animals which emerge from the corral simultaneously after the ninth animal. According to the Tana of one Beraisa, both animals must be left to graze in the pasture until they become blemished, and then the owner may eat them. According to the Tana of another Beraisa, both animals may be offered as a Korban. A third Tana maintains that both animals must die.
The Gemara (61) cites Rebbi Shimon b'Rebbi Aba who taught in front of Rebbi Yochanan that the reason why the third Tana says that both animals must die is that he is discussing Ma'aser Behemah nowadays, when there is a concern for "Takalah." We are concerned that one might inadvertently use the animals for a prohibited purpose (one might shear it, slaughter it, or work with it), not realizing that they are Kadosh.
RASHI (DH bi'Zman ha'Zeh) explains that this Tana does not agree with Rav Huna, who taught (53a; see Insights there) that the Rabanan enacted a decree that Ma'aser Behemah is not separated nowadays because of the possibility that the animal might be a "Laku'ach," a purchased animal, or a "Yasom," an orphaned animal that was born after the death of its mother, neither of which is subject to the obligation of Ma'aser Behemah (as the Gemara (57a) derives from the verse, "Tachas Imo" -- "with its mother" (Vayikra 22:27)). Rav Huna says that Ma'aser Behemah is not separated at all, while the Tana here maintains that it is separated and has Kedushah, but it must die in order to prevent a "Takalah."
Rashi's words are difficult to understand.
(a) Why does Rashi mention the reason that Rav Huna gives, when the Gemara (53a) itself rejects that reason? The Gemara there says that if the Rabanan made a Gezeirah not to separate Ma'aser Behemah because of the concern for "Laku'ach" and "Yasom," then they should have made such a Gezeirah during the times of the Beis ha'Mikdash as well. The Gemara concludes there that there is no concern for "Laku'ach" and "Yasom," because it is possible to make an announcement when one of these animals is present so that people will not put these animals into the corral to be included in the count for Ma'aser Behemah. Rather, the Gemara says that the reason for the Gezeirah is the concern for "Takalah" (as the Gemara here says)! Rashi there (DH Mishum) writes that since a sanctified animal cannot be offered as a Korban nowadays but must be left to graze until it becomes blemished, there is a concern that one might come to shear, slaughter, or work with the sanctified animal before it becomes blemished. For this reason, the Rabanan decreed that the Kedushah of Ma'aser Behemah does not apply nowadays.
Why, then, does Rashi say that the Tana here does not agree with Rav Huna? Rashi should have said that the Tana here does not agree with the Gemara's conclusion earlier that the Kedushah of Ma'aser Behemah does not apply nowadays. The Tana here maintains that an animal separated as Ma'aser does possess Kedushah, and therefore it must be left to die in order to prevent a "Takalah"!
(b) Rashi's statement that we are concerned that one might shear or work with the animal seems contrary to the Gemara in Yoma (66a). The Gemara there says that one may not sanctify an animal nowadays because of a Gezeirah due to the concern for "Takalah." The Gemara suggests that this "Takalah" cannot refer to the concern that one might offer the animal as a Korban (which is prohibited when there is no Beis ha'Mikdash), because we find other instances in which the Rabanan said that an animal must be left to graze (such as a Bechor that must be left to graze until it becomes blemished), and yet there is no concern that one might offer it as a Korban before it becomes blemished. Similarly, the "Takalah" cannot refer to the concern that one might shear or work with the animal, because, again, we are not concerned with this possibility in other cases in which the Rabanan said that a sanctified animal must be left to graze. The Gemara there concludes that we are concerned that one might offer the animal as a Korban. The Rabanan did not make such a Gezeirah in other cases, because in other cases the animal is not fit to be offered as a Korban, and therefore one will not even think about offering it. In contrast, when the animal is fit to be offered as a Korban, the person does not put offering the animal out of his mind, and thus there is a concern that he indeed might offer it. Therefore, the Rabanan made a Gezeirah because of the "Takalah" that one might offer the animal as a Korban. This is the Gemara's conclusion with regard to why one must not sanctify an animal nowadays -- so that one not offer it later as a Korban.
It is evident from the Gemara in Yoma that there is no concern that one might shear or work with the animal. The reason for the Gezeirah was the concern that one might offer the animal as a Korban, and not that one might shear or work with it. Why, then, does Rashi here mention this concern?
ANSWERS: The NODA B'YEHUDAH (YD 2:189) explains that Rashi maintains that one who, nowadays, declares an unblemished animal to be Ma'aser Behemah intends to bring it as a Korban. Even though he designated the animal as Ma'aser Behemah during a time that the Beis ha'Mikdash is not standing, he trusts that the Beis ha'Mikdash will be rebuilt speedily in our days and he will bring the animal as a Korban.
Rashi maintains that the conclusion of the Gemara in Yoma (66a) -- which says that the concern involved with sanctifying an animal nowadays is that one might offer the animal as a Korban when there is no Beis ha'Mikdash -- does not mean that the only concern is that one might offer the animal. Rather, there is an additional concern that one might shear or work with the animal. A sanctified animal that is not fit to be offered as a Korban is kept in the fields far away, and the owner does not think about it and thus he will not come to shear or work with it. In contrast, an animal that is fit to be a Korban is kept nearby, so that the owner can watch over it and prevent it from becoming blemished before the Beis ha'Mikdash is rebuilt. Since the animal is so close, there is a concern that the owner might forget that it is Kadosh and shear or work with it.
Rashi explains that the Gemara here is referring to a "Takalah" of shearing or working with the animal, because he considers it unreasonable that there should be a concern that one might actually offer a Korban nowadays when the Beis ha'Mikdash is not standing. Why, then, does the Tana here say that the Kadosh animals must die? It must be based on another concern -- the concern that one might shear or work with the animal of Ma'aser.
For this reason, Rashi writes that the third Tana does not agree with the Gemara earlier (53a), because the Gemara there maintains that no Kedushah takes effect when one designates an animal as Ma'aser Behemah nowadays, while the Tana here maintains that the animal does possess Kedushah when it is designated as Ma'aser Behemah nowadays (and, consequently, it must be placed in a cell and left to die so that no "Takalah" should occur).
The Noda b'Yehudah adds that it could be that when Rashi writes that the Gezeirah is because of "Laku'ach" and "Yasom," he does not mean that the Gezeirah was made specifically for this concern. He might be referring to the conclusion of the Gemara (53a), that the Gezeirah was made because of the concern for "Takalah." Rashi mentions Rav Huna's reason only because this is the first reason mentioned in the Gemara there. Rashi's intention is that the Tana here maintains that Ma'aser Behemah nowadays does possess Kedushah, while the opinions earlier maintain that the Rabanan decreed that no Kedushah takes effect on Ma'aser Behemah nowadays, even b'Di'eved. (D. BLOOM)
2) HADRAN: THE POWER OF THE SPOKEN WORD
The Mishnah (60a) and Gemara discuss the laws of what happens when a person errs in his count of his animals for Ma'aser Behemah. He mistakenly counts the tenth animal as the "ninth," and the eleventh as the "tenth." Both the tenth and the eleventh animals become Kadosh and must be brought as Korbanos, even though the person's declaration was in error. This law demonstrates the power of a person's speech, for even words spoken in error (proclaiming the eleventh animal as the "tenth") have great potency and are effective in sanctifying an animal as a Korban. Accordingly, one must recognize the potency of his power of speech and be careful to use it for Mitzvos, for positive and productive purposes, and not abuse or misuse that power.
The power of speech is also evident from the beginning of Bechoros. The Mishnah (2a) teaches that when a Jew sells an unborn fetus of a donkey to a Nochri "even though he is not permitted to do so," the foal is exempt from the law of Bechor when it is born. The Chachamim prohibited selling an animal to a Nochri because they feared that one might sell an animal close to sundown on Erev Shabbos and the transaction would carry on until after sundown, and that the Jew, in order to show the Nochri that the donkey is healthy and able to carry a load on its back, will call to the donkey and cause it to walk. The Jew thereby will have transgressed the prohibition against Mechamer, causing an animal to work on Shabbos (Avodah Zarah 15a). The Chachamim made an all-encompassing prohibition against selling animals to Nochrim at any time because of the fear that a Jew might utter, inadvertently, a sound that will cause him to transgress the Torah prohibition of working an animal on Shabbos. It is clear from there the great concern the Chachamim have for the power of speech, and how great is the power of speech when used for the wrong purposes, and what potential it has when used properly.
Maseches Erchin, which follows Bechoros in the order of the Gemara, also expresses the concept of the power of speech. Erchin deals with endowment valuations, a special form of a Neder through which a person pledges to give to the Beis ha'Mikdash the specific value that the Torah designates (Vayikra 27:1-8) for the person's gender and age group. One's speech alone has the power to effect a Torah obligation requiring him to give large sums of money to Hekdesh. The Mishnah at the beginning of Erchin (2a) says, "Everyone is able to make pledges of Erchin." The Gemara explains that the Mishnah's intent is to include even a boy of twelve years of age, nearing manhood. Even though he is not yet mature enough to be obligated in Mitzvos, and his speech cannot be considered to have been uttered with full intent (Da'as), nevertheless his speech is powerful enough to obligate him in the full sum of Erchin. This is why the Mishnah (Erchin 15a) concludes the laws of Erchin by declaring, "It is evident that what one speaks with his mouth is more powerful than the actions that he performs."
May Hash-m help us use the power of speech that He has given us to serve Him properly and to glorify His holy Name in this world!