1) GIVING UNDESIGNATED BIRDS TO THE KOHEN
QUESTIONS: Rav Shimi bar Ashi asks that if the Halachah of Ma'os Setumin applies only to money and not to animals, it also should apply only to money and not to birds. Rav Chisda, however, states that when a woman buys a pair of birds in order to bring one as a Chatas and one as an Olah (for her Korban Yoledes), she may designate which one is the Chatas and which is the Olah only at the time she buys the birds, or the Kohen may designate the birds at the time he offers them on the Mizbe'ach. If birds are not considered "Ma'os Setumin," the Kohen should not be able to designate the birds at the time he offers them because the birds should be considered designated already ("Mefurashin").
TOSFOS (see previous Insight) explains the question of Rav Shimi bar Ashi as follows. After the woman buys the pair of birds, she cannot choose which one will be the Chatas. Rather, the Kohen -- when he offers them -- designates one as the Chatas and the other as the Olah. Since the owner cannot choose which one will be the Chatas and the birds must wait in their undesignated state until they are offered, there is a concern that as time passes the owner might mentally designate one as the Chatas and the other as the Olah.
This explanation is problematic for several reasons, as the RAM (cited by Tosfos) notes.
(a) In what way can the owner designate a bird as a Chatas or Olah in his mind? Rav Chisda states that even if he verbally declares one as the Chatas and one as the Olah, his declaration does not take effect. How can his unspoken thought, when he designates the Chatas and Olah in his mind, be more effective than his verbal declaration?
(b) Tosfos explains that Rav Shimi bar Ashi's question is based on the understanding that the Kohen may designate either bird as a Chatas without asking the owner if she already designated one of them as the Chatas. Why does he not have to ask the owner? Since the owner is able to designate one bird as a Chatas and one as an Olah at the time she buys them, the Kohen obviously must ask her whether she designated them at the time of purchase! (ARZEI HA'LEVANON)
Perhaps one may suggest that the Kohen infers from the fact that the owner gave the birds to him mixed up with no specific instructions for how to offer them that the owner did not designate either one as a Chatas or Olah. However, if this is true, why should there be a concern that the owner might have designated in her mind one of the birds as the Chatas after she purchased them? Had she designated one as the Chatas, she certainly would have told the Kohen.
(c) Why does Tosfos write that the Kohen should not be able to designate one of the birds as the Chatas "if the owner is present" and the Kohen does not ask the owner if the birds have already been designated for their respective Korbanos? Tosfos should explain instead that the Kohen should never be able to designate the birds without first confirming that the owner did not designate them, whether or not the owner is present. (This indeed is the way the RAM presents the Halachah in his second question on Tosfos.)
(d) Why does Rav Shimi bar Ashi not ask from the numerous Mishnayos which discuss the case of a Ken Setumah (a pair of birds purchased for Korbanos but not yet specified)? According to Tosfos' explanation, no Ken can ever be treated as Setumah since the owner might have already designated one of the birds as the Chatas!
(a) Tosfos maintains that after the owner has purchased the birds, she cannot designate one bird as the Chatas and thereby make it a full-fledged Chatas (with regard to "Chatas Mesah" if the owner dies). However, she can determine which one the Kohen must make into a Chatas at the time he offers the birds. If the Kohen offers the other one as a Chatas, the Korban is not valid. The Kohen is limited to designating as the Chatas the same bird that the owner designated in her mind. The owner can determine which bird the Kohen needs to choose in this manner not only by expressing it verbally but even by thinking it in her mind (because Dibur, speech, is not necessary in order to make an object Hekdesh).
(b) The Kohen certainly may infer from the fact that the owner gave him a pair of birds without specific instructions that the owner did not designate one as the Chatas at the time of purchase. However, the Kohen may not infer that the owner never thought to herself that she would like one to be the Chatas. This is because most people are not aware that such a thought affects the status of the birds, since the time of purchase has already passed. This is why Tosfos suggests that the person might think that the bird is a Chatas and not say that it is a Chatas -- the owner assumes that there is no point in verbally designating one as a Chatas once the time of purchase has passed. However, she might inadvertently think that she wants one to be the Chatas. Since the owner might have made one a Chatas without realizing the effects of her thoughts, the Kohen must ask her if she ever thought in her mind that one of the birds should be the Chatas. Rav Chisda, who says that the Kohen may offer the bird without asking the owner anything, implies that the owner is not suspected of designating one as a Chatas just because it was in her possession for an extended period of time.
(c) Why does Tosfos write that the Kohen should not offer the Korbanos when the owner is present without asking the owner, which implies that the Kohen may offer the Korbanos when the owner is not present? When the owner is not present, the Kohen certainly may not offer the Korbanos! The answer is that the concern that the owner might have designated one of the birds as a Chatas is only mid'Rabanan. Rav Chisda, who is discussing the Halachah d'Oraisa, is correct when he says that according to the Torah the Kohen may offer the Korbanos without conferring with the owner; mid'Oraisa there is no concern that the owner already designated one of the birds as a Chatas. However, if the owner is present and the Kohen is able to determine whether or not the owner designated one as a Chatas by simply asking, even mid'Oraisa the Kohen should have to ask the owner and clarify the doubt about the bird. When the owner is present, the Torah requires the Kohen to ask him about it, since it is possible to clarify the doubt. When Rav Chisda says that even if the owner is present the Kohen does not have to ask him, he implies that there is absolutely no concern that the owner designated one of the birds as a Chatas, and, consequently, the Rabanan have no reason to enact a Gezeirah to prohibit the Kohen from choosing one as a Chatas, b'Di'eved, when the owner is not present.
(d) All of the other Mishnayos which discuss a Ken Setumah pose no problem to the statement of Rav Huna in the name of Rav. Those Mishnayos may refer to cases in which where the owner is present and asserts that she never mentally designated either bird for a specific Korban. However, the statement of Rav Chisda implies that it is not necessary for the owner to declare that she did not designate the birds, and thus the Kohen may assume that the birds were not designated.