Bechoros 9b - Spending Money for Safeik Mitzva

The Mishna says that if one has a safeik whether they have a peter chamor, they must redeem it with a sheep but don't need to give it to the kohein  since the rule for giving is המוציא מחבירו עליו הראיה - the burden of proof is on the collector. The gemara says that this follows the opinion of R. Yehuda who says that a peter chamor is forbidden to derive benefit from, therefore one must redeem it even though it won't be given, but according to R. Shimon who says that it is permitted, there isn't even a mitzvah to redeem it. 

Tosafos raises an interesting question - A peter chamor without redemption requires it's neck to be broken. Since the mitzvah to break it's neck (arifa) is like any mitzvah where we are strict when there is a doubt, even if it weren't assur b'hanah, there should be a requirement to break it's neck. Tosafos answer cryptically and says that just as one doesn't need to give it to the kohein, there is also no requirement to do the arifa out of safeik. It isn't clear what Tosafos means to say - the concept of המוציא מחבירו עליו הראיה exempts the giving to the kohein but doesn't exempt the breaking of it's neck? 

The Maharit Algazi suggests that since we have a concept of המוציא מחבירו עליו הראיה and apply it even to mitzvos that one is obligated to do by the torah such as all safeik of gifts to the kohein, we can similarly apply this concept to any mitzvah where it is questionable if one needs to fulfill it and the fulfilling of it would entail a loss of money. Since the arifa of the peter chamor would be a loss of money, one isn't required to incur the loss for a safeik mitzvah.

This approach is very difficult to accept. It should follow that if one is in doubt whether they are obligated in matzah on pesach or whether they have already fulfilled their mitzvah, they shouldn't be required to incur any expense to fulfill the mitzvah. Had this been true, it should have been mentioned in earlier poskim. Rather, we generally assume that this rule is limited to mitzvos that require giving, but doesn't apply to expenses that need to be incurred to fulfill mitzvos between man and G-d. Therefore, this concept shouldn't apply to the mitzvah of arifa (breaking the donkeys neck).

The Rashash explains that Tosafos doesn't mean to fully equate the mitzvah of breaking the neck with the giving to the kohein, since the concept of המוציא מחבירו עליו הראיה wouldn't apply to the mitzvah of arifa. Rather, Tosafos holds that the arifa is the consequence when one doesn't fulfill the mitzvah to give the sheep to the kohein as redemption of the newborn donkey which is incumbent upon him. When there is no requirement to give a sheep to the kohein, the mitzvah of arifa would also not apply.

Bechoros 6b - Heter to Drink Kosher Milk

The gemara says that the fact that milk of a kosher animal is permitted to drink is a chiddush because one could have argued that it would be included in either the prohibition against blood (דם נעכר ונעשה חלב), or the prohibition against אבר מן החי since it is part of a live animal. The gemara cites three possible pesukim as the source of the fact that milk is kosher (either the pasuk when Dovid brought milk to the troops, or the pasuk that praises the land of Israel for it's milk which indicates that it is permitted to drink, or a pasuk in Yeshaya).

The Shita Mikubetzes asks, why not use the pasuk by Avrohom when he fed the angels butter and milk. Being that Avrohom kept the entire Torah, the fact that he was willing to give milk to the angels indicates that it is permitted to drink? The R"I answers that Avrohom thought that they were bnei noach. Even if milk were forbidden to Jews, it wouldn't be one of the 7 Noachide laws and permissible for them to drink it. The Shita then cites a Yerushalmi (which is not in the Yerushalmi but in the pesikta and quoted by the da'as zekeinim on parshas vayera) that indicates they ate meat and milk (unlike the gemara in baba meztia which implies that didn't actually eat, and also says that it was served one by one i.e. milk before meat) . When it came time to give the Torah and the mal'achim were complaining they wanted to keep it, Hashem said that every child knows that meat and milk can't be eaten together, yet they ate meat and milk when they visited Avrohom. It isn't clear how this midrash connects to the discussion of the Shita Mikubetzes. Perhaps the Shita is trying to prove that Avrohom thought they were bnei noach from the fact that he fed them meat and milk, so there wouldn't be any proof from there about milk being permitted to drink.

The Maharit Algazi asks that according to the rationale that milk would be assur as אבר מן החי, it would surely apply to non-jews as well. The answer of the Shita that Avrohom assumed they were bnei noach doesn't work if the issur on milk would be an offshoot of אבר מן החי? The Chasam Sofer (y.d. 70) answers that the gemara never really suggested that milk would actually be אבר מן החי or בשר מן החי because it is neither an ei'ver or ba'ssar. Rather the gemara was suggesting that it should be LIKE אבר מן החי in the sense that it would be assur (not not for goyim), based on concept of הטמאים - לאסור צירן ורוטבן וקיפה שלהן. Meaning, since אבר מן החי is assur and the animal is assur when it is alive, so anything that comes from it when it is alive should be included in the prohibition of הטמאים. This prohibition would certainly apply to Jews only, therefore Avrohom would have had no problem giving milk to b'nei noach.

Bechoros 5b - Categorizing Animals Based on Features or Genetics

The Mishna discusses a case where a mother cow gives birth to a child that looks like a donkey. The gemara learns from the pasuk of פטר חמור that the child would not have Kedushas Bechor. It is clear from the gemara that we completely exempt it from any kedusha of bechor, but it isn't clear from the gemara which type of kedusha it would have if not for the pasuk excluding it. Meaning, do we regard it as a cow since genetically it is a cow, just that it looks like a donkey, or do we regard it as a donkey since it looks like a donkey?

It would seem that the answer lies in the end of the Mishna which cites a rule that היוצא מן הטמא טמא והיוצא מן הטהור טהור. The mishna seems to indicate that the genetic makeup of an animal determines the species to which it belongs, therefore an animal born from a kosher animal (even if it looks like a donkey) is kosher. Similarly, an animal born from a non-kosher animal (even if it looks like a cow) is not a kosher animal. If genetics determines the category, we would have to say that a cow that gives birth to a donkey would have been treated like a בהמה טהורה and been brought as a korban on the mizbei'ach, if not for the pasuk excluding it.

However, the implication of the mishna which uses a pasuk of פטר חמור to exclude this case, implies that we really need the pasuk to exclude it from the requirement of פטר חמור, not from kedushas mizbei'ach (although the gemara confirms that it would certainly be excluded from kedushas mizbei'ach as well). The Steipler (4) proves from Tosafos that this is true. Tosafos suggests that for a cow that gives birth to a donkey the pasuk of the mishna (פטר חמור) would be necessary to exclude if from the mitzvah of redemption like a donkey, and the pasuk in the gemara would be necessary to exclude the reverse (a donkey giving birth to a cow) from kedushas mizbei'ach. Although Tosafos concludes that either pasuk would exclude it completely, their logical default for not having a pasuk would be that the animal should be treated as it looks, not as the species of it's mother. Meaning, a cow that gives birth to a donkey would have been treated like a donkey to require redemption despite that it's genetic makeup is that of a cow. The Steipler proves from here that the species of any animal is determined by it's appearance, not by it's genetics. Nevertheless, there is a separate rule that if it looks like a kosher animal but is born from a donkey, it cannot be eaten - היוצא מן הטמא טמא, not because it's a donkey, but because it is a non-kosher cow. Similarly, if it looks like a donkey it is a donkey, yet if born from a cow it can be eaten because היוצא מן הטהור טהור. This approach of categorizing a donkey born from a cow as a "kosher donkey" is significant because for purposes other than eating i.e. eiver min ha'chai it would have status of what it looks like, not what it is genetically.

The gemara 6a seems to strongly support the approach of the steipler that the species is determined by it's appearance rather than it's genetics. According to the rule that having similarities to it's mother can make it have kedusha of bechor, the gemara questions whether a donkey that has similarities to it's mother which is a cow, would have kedusha. The gemara's suggestion of why it is too different from the mother and wouldn't have kedusha is - הא טמאה והא טהורה, הא קדושת הגוף והא קדושת דמים. The gemara describes it as a non-kosher animal and as the value having kedusha rather than inherent kedusha. Clearly, the gemara is understanding that since it looks like a donkey, if it were to have kedusha (because it has similarities to the mother), it would have קדושת דמים like any donkey, not קדושת הגוף like it's mother.

Bechoros 3b - Avoiding Kedushas Bechor

The gemara discusses exactly how much of an animal must be given over to a goy in order to avoid kedushas bechor. The predominant opinion seems to be like R. Huna that the ear is enough, since we find that Rami Bar Rachel did that as well. Tosafos entertains the possibility that we would pasken that one would have to give over to the goy a portion in the animal that if missing would render the animal a neveila or treifa (rav chisda and rava), but considers it to be a chumra. Regarding the fact that one is removing kedusha from animal entirely by selling a portion to a goy, Tosafos suggests that it would only be an issue if one were to sell a portion of the fetus which itself would have otherwise had kedusha, but would not be an issue when selling a portion of the mother. Even though this may not be ideal, Tosafos considers it the proper thing to do nowadays since there is no better alternative and if this isn't done someone will surely violate a more severe prohibition with the animal.

The Turei Even (Rosh HaShana 13) suggests that being mafkir the animal would NOT be sufficient to remove the kedusha of bechor from the fact that Rami Bar Rachel who was looking for the simplest option, didn't use the method of hefker. The Chasam Sofer (Y.D. 316) dismisses the proof since it could be that a proper hefker in the presence of others could have been more complicated and difficult than simply selling the ear to a goy. The Maharit Algazi suggests a complicated approach. Hefker wouldn't work to remove the obligation of bechor on an animal that already has kedushas bechor. However, if one were to be mafkir the fetus prior to it's birth, since at the time when it would be fit to receive kedushas bechor it doesn't have an owner, it wouldn't get kedushas bechor. He then backs off based on a gemara in Chulin and says that even if born as hefker, as soon as a Jew would take possession of it, it would assume kedushas bechor.

Chulin 141b - Punishing for Shiluach Hakein

The gemara says that R. Yehuda gave malkus to someone who clipped the wings of a bird and then sent it away on its feet to fulfill the mitzvah of shiluach hakein because he holds that it must be sent away by flying, not by hopping. The Mishneh L'melech (hil. avadim 18) asks how he was able to punish for this mitzvah. We have a rule - כל מצות עשה שמתן שכרה בצדה אין ב"ד של מטה מוזהרין עליו, meaning that Beis Din doesn't punish for any mitzvah that has a reward tagged onto it. How was R. Yehuda able to punish for shiulach hakein which has the reward of long life attached to it? 

The Maharatz Chiyus suggests based on Rashi (?) that the reason that beis din doesn't punish when there is a reward attached is because by writing the reward the torah is hinting that the this is the reward for doing it and not receiving this reward is the punishment for not doing it, to the exclusion of any other punishment. The Maharatz Chiyus explains that this rule works by other mitzvos, but by shiluach hakein the mishna 142a says that the reward needs to be written to teach that there is tremendous reward even for small mitzvos such as this for which there is very little expense. From here we derive that for all mitzvos there is great reward, making it unnecessary to dictate the specific reward if not for the purpose of exempting you from any other punishment. Therefore, shiulach hakein is an exception to the rule since it serves as the source for teaching that there is great reward for even seemingly simple mitzvos, and is not meant to exclude any other punishment.

It seems to me that Rashi himself is coming to answer the question as to how R. Yehuda was able to punish for a mitzvah that the torah writes the מתן שכרה בצדה. Rashi says that the purpose of his "punishment" wasn't punitive, rather it was רידוי בתוכחה שלא ירגיל בזה, ואין לה קצבה אלא עד שיקבל עליו. Meaning, the purpose was not to punish, rather to change the person and motivate him to fulfill the mitzvah. Although Beis Din may not "punish" or "penalize" for mitzvos on which a reward is tagged on, they may still have the ability to encourage and motivate one to fulfill the mitzvah even through force.

Chulin 139b - Searching after mitzvos

The gemara says that one may have thought that they would be required to search after the mitzvah of shi'luach ha'kein and put in effort to find a birds nest on mountains and hilltops, to which the gemara responds that it only applies when you chance upon it. There is a great debate among the achronim regarding the mitzvah of shiluach ha'kein, whether it is an absolute obligation to send away the mother bird even if one has no particular interest in the baby birds, or is it a mitzvah more similar to divorce where if one wants to do something i.e. take the babies, or divorce their wife, the torah prescribes a format that must be followed. The Chacham Tzvi (83) and Chasam Sofer (100) suggest from this gemara that thought to demand searching after the mitzvah on mountain tops, that it is an absolute obligation. Although the gemara concludes that one isn't obligated to go to the extreme of trying to locate a birds nest, the underlying assumption that it is an absolute imperative even if one has no interest in the babies is never rejected.

On a bit of a different note using the same source, the Mekor Chaim (Nesivos on Hil. Pesach Siman 432) which I cited in my sefer Nasiach B'chukecha (195) proves from our gemara that one is required to invest effort into searching after mitzvos from the fact that the gemara required a specific pasuk to exempt the assumption of searching after the mitzvah on hilltops. Therefore, other mitzvos that don't have a pasuk exempting this level of effort, would demand that extreme amount of effort. However, in my edits on my sefer I pointed out that from Rashi we would be able to prove the exact opposite. Rashi writes - 

שנאמר שלח תשלח ב' פעמים, שומע אני לחזור אחר המצוה הזאת עד שתבא לידו. Rashi explains that the default position for having to put tremendous effort into searching after this mitzvah is not a gobal requirement or assumption that would be by all mitzvos. Rashi says that since we have the double language of שלח תשלח I would have understood that this mitzvah would require one to search after it in order to fulfill it, to which the gemara responds that כי יקרא implies the opposite. Therefore, other mitzvos which have no pasuk specifically implying that it demands an extreme level of effort, one would not have to put in tremendous effort to attain the mitzvah.

Chulin 135a - Reishis Ha'Geiz and Matnos Kehuna Nowadays

According to the Mishnayos both the mitzvah of ראשית הגז  and the mitzvah of מתנות כהונה apply without a Beis HaMikdash and even outside of Eretz Yisroel. However, Rav Nachman 136b made a statement that the minhag is to follow רב אלעאי by ראשית הגז and that it should only apply in E.Y. Rashi comments - והוא הדין במתנות, meaning that there is no rationale to differentiate between ראשית הגז  and the matanos of זרוע לחיים וקיבה. Since the minhag has become to follow רב אלעאי by ראשית הגז, we also follow him for matanos kehuna that they don't apply outside of E.Y. The Shulchan Aruch both in the halachos of Matanos Kehuna (y.d. 61:21) writes that they apply even outside of E.Y. and then cites a יש מי שאומר שאינן נוהגות בחוצה לארץ. The Shulchan Aruch in the context of matanos kehuna writes וכן נהגו on the lenient opinion even though the main opinion seems to obligate matanos even outside of E.Y. Interestingly, the Shulchan Aruch in the context of reishis ha'geiz doesn't even quotes the stricter opinion - he writes that it only applies in E.Y. to which the Rama adds that some says it applies even on a Torah level in chutz la'aretz but we aren't noheig to be machmir. The Shulchan Aruch is more confident about exempting from reishis ha'geiz in chutz la'aretz since that is explicit in Rav Nachman's statement. Although there is no rationale to differentiate between reishis ha'geiz and matanos, the gr"a (61:20) explains that the leniency is based on a minhag which may have only been to be lenient about reishis ha'geiz and not about matanos kehuna. The Beis Hillel (333) struggles with trying to understand why we are even lenient in E.Y. nowadays. Although the Pischei Teshuva (61:8) cites the chasam sofer who would routinely shecht an animal before yom tov and fulfill the mitzvah of matanos kehuna and reishis ha'geiz, the minhag is not to be makpid about fulfilling these mitzvos. The Beis Ephraim (on shulchan aruch 61) quotes the kerisi u'pleisi who wonders why we don't find people going out of their way to fulfill this mitzvah. He quotes the Pri Chadash who argues on the Beis Hillel's (who wrote that he was told that even in E.Y. people don't fulfill the mitzvah of matanos kehuna), and says that they didn't realize what they saw because it is מעשים בכל יום that matnos kehuna are given in E.Y. from the animals that are being shechted. The Beis Ephraim also quotes that the kreisi writes that his son in law insisted on giving matanos kehuna at the pidyon ha'ben of his son. Since he was being machzik the kohein as a kohein for the purpose of discharging his pidyon ha'ben obligation, he certainly can rely on his yichus to give him matnos kehuna.