remember, I can't forget. That's recordings, actually. Okay. Okay, the Gemara here on דף ו עמוד ב, the end of עמוד א in Bava Metzia. Gemara says ההוא בי מסותא, there was this bathhouse, דמצו עליה בי תרי, two people arguing over it. האי אמר דידי הוא והאי אמר דידי הוא, each one said it's mine. קם חד מינייהו אקדשה, so one got up and made it hekdesh. פירשו מינה רב חנניה ורב אושעיא וכולהו רבנן, all the Chachamim stopped using it, because it's a safek, and now maybe it's hekdesh. Now, Beit Din never pask yet whose it is. And the din is you can't be makdish something that's not yours. Nevertheless, when they were makdish it, when he was makdish it, one guy, what did the sue? Chachamim said, \"We don't know.\" And it says אמר ליה רב אושעיא לרבה, רב אושעיא said to רבה, כי אזלת קמיה דרב חסדא לכפרי, when you go to כפרי to רב חסדא, בעי מיניה, ask him the she'eilah: Is it hekdesh or not? כי אזל לסורא, he didn't get to כפרי, but he happened to go to סורא, and אמר ליה לרב המנונא, so he spoke to רב המנונא about it. And רב המנונא said מתניתין היא, it's a I have a re'ayah from a Mishnah to answer this question. What does it say in the Mishnah? It says like this: ספק פטרות, אחד פטרי אדם ואחד פטרי בהמה, בין טהורים בין טמאים, המוציא מחבירו עליו הראיה. If you

have a ספק בכור, ספק בכור, if you have a behemah that gave birth to a calf, now you don't know if she ever gave birth before or not. Now if it didn't give birth before, then this is a bechor. If it did, it's not a bechor. What's the din of a bechor? A bechor, we know, you have to give to the kohen, and you have to bring it in the korban. There's a kedushah, it's a קרבן בעצם. Okay. So here, so what happens if it's a safek? Now, like I said, there are two things by a bechor: you have to give it to the kohen and it becomes and it's kodesh, it has a and kedushah means that you can't work with it, you can't cut the wool. Now when it's a safek, what's the din? המוציא מחבירו עליו הראיה. Now the question is, does the kohen get it or not? So since it's a safek, what's the din by a ספק ממון? If there's a safek, I have something and it's a safek maybe it's mine, maybe it's yours, המוציא מחבירו עליו הראיה, so you don't get it. ותני עלה, it said in another braisa: אסורין בגיזה ועבודה. That even though we said המוציא מחבירו עליו הראיה, which means that you do not have to give it to the kohen, but still it's holy. Because of safek, right. It's holy because of the safek? Because maybe it's a bechor. Yeah. What does he want to bring out from this din? So he says like this: והכא, here, דאי תפס כהן אין מוציאין אותו מידו. In this case, what would be the din if the kohen would grab it? He said that it's a safek, so you don't have to give it to the kohen. What would be the din if the kohen comes and grabs it out of you and he has it? אין מוציאין אותו מידו, you don't take it away from him. Now how do you know that's the din? Where does it say that? So the Rashba explains, because the lashon is המוציא מחבירו עליו הראיה. Whoever takes out from the other guy, he has to prove it, because the other guy who who has it keeps it. So we he learns, that means both ways: if the איד has it, the baal habayit, the owner originally has it, you don't have to give it to the kohen. Why? Because now the kohen is the motzi, he's trying to take it from you. From that we understand, what happens if the kohen got it now? So now I'm the motzi, so he doesn't have to give it back to me. So it means that the case here is תפס כהן אין מוציאין אותו מידו. If the kohen would grab it, you wouldn't take it away from him. Can you use this case, for example, with the bathhouse? We'll see, I'm not finished yet. I'm not finished yet. So how do we know that we don't take it away? Because it says המוציא מחבירו, whoever the מוציא מחבירו is, עליו הראיה. Nevertheless, וכי לא תפסי, if he didn't grab it, the Kohen, the Kohen didn't grab it, and in whose hands does it stay? The baal habayit. Nevertheless, אסורין בגיזה ועבודה. It's אסור בגיזה ועבודה, it's still kodesh. So what do we see from here? That's how we learn, that's how Rav Hamnuna learned pshat: that because the din is that if the Kohen grabs it, he keeps it, that means that be'etzem this ספק בכור has a connection to the Kohen. Because if it had no connection to him, if he grabs it, he has to give it back! Obviously there's a connection to him. Therefore, because it has a connection to him, there is a din of kedushah. Because there's a connection to him, that's why it's kodesh. Because since the din is that if he grabs it, he doesn't give it back, that's why the din is kodesh. Therefore, he wanted to use that as a re'iyah to the case of the bathhouse. What is the din by the bathhouse? By the bathhouse, it's כל דאלים גבר. It's called what? כל דאלים גבר. Whoever is stronger, the halachah over there would be, let's say they would not no one would be makdish it, suppose they're fighting over it, what would בית דין פסק? They would פסק כל דאלים גבר. Go fight it out, and whoever gets it He keeps it. What do you mean get a bathhouse? So there it means kick the other guy away, you know. If you ever you bring your your chevra, your friends, and you push the other guy and you take it, he would keep it. Tomorrow he comes back and pushes the other guy. Okay, of course you can say so, yes, that could happen. But l'maaseh the din would be if you would grab it, you could keep, you would keep it. The she'eilah we had was he was makdish it before he didn't grab it. Is that hekdesh? So he wants to prove from this din because the din is that if you grab it you keep it, that's why there is a kedushah here even if he didn't grab it. So he wants to use the same logic by the case of the bathhouse, that because the din over there is that if you grab it, you keep it, so therefore, even if you didn't grab it, there's a kedushah if you're makdish it. By a By the case by the case of by the bathhouse. What does that have to do with Kohen? What's that to do with Kohen? We use this as a dugma. But the first who grabbed it has no shaychut to it. Yeah, he has a shaychut. What shaychut? Because kol d'alim gvar. If he would if he would grab it, he would keep it. True. Just like by the kohen, if the kohen would grab it, the kohen would keep it. Aha, he was makdish it before. And here the case was he didn't grab it, but he was makdish it. So we say from there we see that it's a kedushah. Why is there a kedushah? So he felt the reason why there is a kedushah, because if the kohen would grab it, he would keep it. Mimela, even if he didn't grab it, the fact that if he would grab it he would keep it is a re'iyah that be'etzem it has a shaychus to him. And because be'etzem it has a shaychus to him, that's why the kedushah comes. So he wants to use the same logic here by the מסותא, by the bathhouse, that because the din is that if he would grab it he would keep it, because kol d'alim gvar, so even if he didn't grab it, he could be makdish it. That's as if he grabbed it too, like one of Well mimela it has to be if he grabbed it, yeah. Yeah, and is it still called a bechor if it has kedushah? Has to be still called a bechor. Yeah, yeah, kedushat bechor, what other kedushah does it have? אמר ליה רבא, so רבא said to him, no! קדושת בכור קא אמרת? What kind of ראיה are you bringing me from בכור? לאו אמינא לכו דאי תפס כהן מפקינן מיניה? Be'emet I could tell you that if the כהן grabbed it, we do take it away, and still, אפילו הכי, אסורה בגיזה ועבודה! Still it's אסור. You wanted to say that the reason why it's קדושה because if the כהן grabs it, he keeps it. Who told you that? I'm telling you the פשט in the משנה is not like that! If a כהן grabs it, he does not keep it! And still the קדושה is there. Why? Because קדושה הבאה מאליה שאני! Because it's a קדושה that comes by itself! It's not like the case of the מסותא where he's מקדיש it. It's a קדושה, it has nothing to do with whether the kohen keeps it or not. It's a ספק בכור. A bechor is a korban! It's a ספק קרבן! So you have to be machmir, and you have to it's kodesh. How could it not be kodesh? The bathhouse has two equal guys who argue, there's no kohen. So what? Who cares about the kohen? There it's an example of that, and the other one was makdish it. So we want to use the logic of here, because the kohen could keep keep it if he grabbed it, that's why the קדושה חל, we wanted to say the same thing here also, that because if one of this guy would grab it he would keep it, that's why he could be makdish it. So he says it's no re'ayah! Here we're talking about being able to be makdish it, and there the kedushah comes by itself. Okay. I thought before you were saying it's the same in his mind? What sort of rule was in his point, if the kohen could grab it, then So now he's saying not like that. He's saying right. So it comes out that before he held that if the kohen grabs it, אין מוציאין מידו, you don't take it away, and then we she changed, he said, no, if the כהן, מוציאין מידו. The fact that you were medayek in the words המוציא מחבירו עליו הראיה that you thought meant that first if the owner has it, he doesn't have to give it to the other guy unless he brings a re'ayah. The kohen has it, you don't take it away from you have to bring a re'ayah. It's not true! המוציא מחבירו עליו הראיה over there is the pshat that the first guy who has it kept it, it's his, and the other guy, the kohen, if he grabs it, we take it away. איי, why is it kodesh? For different reasons, because it's a kedushah has nothing to do with who it belongs to, it's a kedushah by itself. Says the גמרא ווייטער, אמר ליה רב חנניה לרבא, so Rav Chananya said to Rava, you claim that the din is if the kohen grabs it, מוציאין מידו, we take away, that's what your ta'anah is, תניא דמסייע לך, I have a re'ayah for you that if the kohen grabs it, we don't let him keep it. I have a re'ayah! Says the ברייתא, הספקות נכנסות לדיר להתעשר. We know

there's a din of מעשר בהמה. You have to take all your בהמות every year, the new בהמות that were born, and every tenth, you have to put them all into the stable and they go out and you count 1 2 3 4 5 6 7 8 9 10, the tenth one is מעשר בהמה. What do you do with מעשר בהמה? מעשר בהמה is yours, but it's a korban. It's a korban, it's actually it's type of korban it's exactly like בכור. In the morning we say הבכור והמעשר והפסח, they all have the same din, except the Pesach goes at a different time. Why say every year? I mean if you have 20 if there's 20 are born in one year, you only take from the tenth, the tenth one? No, from 20 you take two. Oh, you take the two? Okay, you take the tenth and Yeah, yeah, from every 10. Every year a tenth, okay. Every year. In other words, whatever is the newborns of this year, from all of them you take maaser. Maaser means every 10. And then when the year ends, then it stops and starts Then there's a new, yeah. You're not, let's say you're left with five, the end of the year you're left with five. And then more born, these five are patur because you count them inside of them in the next year. But that's nothing, he's talking about. Whatever, but once the בהמה is maaser, do they make a mark on them? Yes, they make a siman. Right, a paint? They separated, yeah, then everybody know it's a korban. Okay. So, he says like this: what happens if you have a ספק בכור? ספק בכור, if you know he's a for sure בכור, that doesn't go into maaser. When we say you have to take off מעשר בהמה, that's only חולין, only from the regular בהמות. A בכור is called holy, is kadosh, and you don't take off, you don't put it into the maaser. But if you have a ספק בכור, yes? So you have to let him go among the 10, and it's even possible that that ספק בכור will come out, and it'll be the 10th and that'll be maaser. That's what it says here. So he says, אי סלקא דעתך תקפה כהן אין מוציאין מידו, if your sevara would be that if the כהן grabbed it, you let him hold it and you don't take it back from him, אמאי נכנסים לדיר? How could you let him go into the stable to be part of maaser? נמצא זה פוטר ממונו בממונו של כהן. If the כהן grabbed this here, that means the כהן has a certain בעלות, a certain ownership over it. So now you're putting it in a maaser. What happens if this comes out the 10th? You'll be giving this as maaser. So you're taking money that belongs to the כהן and using it to to save yourself money that it shouldn't be yours. You can't do that. So therefore he says the only way I can explain it why you put him in, the ספק בכור, because if the כהן grabbed it, we take it back! That means the כהן has no hold on it, וממילא it's not his money, so therefore, I could use that as maaser. This is a raya, you get? So again,

first we said the first pshat is תקפה כהן אין מוציאין מידו. Rav Huna thought that if the Kohen grabs it, we don't take it away. Came Rabbah and said, \"No, if the Kohen grabs it, we take it away, and still it's kadosh.\" Came Rav Huna and brought a raya to Rabbah that תקפה כהן, if the Kohen grabs it, מוציאין מידו, we take it away, because if the din would be we don't take it away, we could never put this amongst the maaser, because it's taking away. Yeah, this brings a proof for his sevara. Yeah, yeah. He's bringing a proof to the other guy? Why is he bringing a proof for the other opinion? Because when he answered him, he said it. Yeah, he's admitting the other is right? Yeah, that his sevara is right, but his conclusion is going to stay the same, though. No, he's not admitting he is right, he says, \"Here, I have a raya for you.\" Oh. It's like a It doesn't make sense. I'm I'm saying something, you took that. No, \"I have your proof.\" So what's the problem? Okay. In the Gemara we have Abaye veRava usually would argue, all kinds of kushyot. So there's a kushya on Abaye. Abaye had no answer, and Rava said, \"I'll answer for you.\" And Rava answered for him. And still has his own Still has his own opinion, yeah. Now How to keep how to keep the argument going. אמר ליה אביי, אביי שלאגט אפ די ראיה. The one that's supposed to get a hold. After אביי שלאגט אפ די ראיה, אמר אביי, אביי said, \"לאו מילתא היא דאמרי.\" My אפשלאג is no good אפשלאג, and the raya is a good raya. That's intellectual honesty. Yeah, yeah, we're talking about honest people here! So he says, \"My raya My אפשלאג is no אפשלאג, your raya is a raya.\" So it comes out that if the raya is back a raya, so what do we say there? תקפה כהן He keeps it. No, מוצי-, it's מוציאין מידו. If it's not a raya Yeah, the raya was that we wanted to bring a raya that תקפה כהן, we take away from him. So he wanted to שלאג אפ the ra'ayah, and then he brought back the ra'ayah. So the ra'ayah is back! Oh, then תקפה כהן מוציאין מידו. What do they do with the sevara that in whose hands it is, he can that he's So he said that lashon doesn't mean that. That means just the first one. Since he has it, stays with him, and that's it, the Kohen can't take it. That's how he טייטשט. We thought the first טייטש is whoever has it, the other guy can't take it, so if the Kohen took it, then he keeps it. So he said that's wrong, that's not the peshat. And he brought a ra'ayah from there that תקפה כהן מוציאין מידו. Okay, I'm just skipping around because that's only what's נוגע. Comes the Gemara later, and the Gemara asks the שאלה בכלל. When it said the ספיקות, ספק בכור, you take him to make it ma'aser, so he asked the she'eilah: מאי ספיקא? אילימא ספק בכור, if it means ספק בכור, how could you take a ma'aser? \"יהיה קדש\" אמר רחמנא, ולא שכבר קדוש. Since it might be a bechor, the Torah says by ma'aser it has to be that the one that becomes ma'aser becomes kadosh. Right. But here, this is a bechor, and we said even if it's a safek, it has a kedushah! So how could this be ma'aser? It has nothing to do with the discussion before, but that's a she'eilah on that on that Mishnah. אלא, he said, \"I'll tell you what it means. ספק פדיון פטר חמור.\" Oh! It's a different din. There's a chamor, a firstborn donkey, is also you have to redeem it for a seh. You have to redeem it for a seh, for a sheep. The one you redeem for the sheep is not holy. It doesn't have a kedushah. You have to give You have to give it to the Kohen, but it doesn't have a kedushah. That's what he means. If you have a safek on the donkey if it's a בכור or not, what do you have to do? So the דין is you redeem it and keep the and keep the שה for yourself. You can't don't give it to the כהן because we don't know who belongs to him. And he said כי דרב נחמן. אמר רב נחמן אמר רבה בר אבוה, נחמן אמר רבה בר אבוה: ישראל שיש לו עשרה ספק פטרי חמורים. A Yid has, what do you call it, 10 donkeys which is a ספק. מפריש עליהן עשרה All 10 are a ספק? Huh? All 10? So, it gives an example, מפריש עליהן עשרה שה. You have to redeem it for a שה, and what happens to the whole 10 שה? Don't give it to the כהן, ומעשרן. It's חולין. You have to use it for מעשר because it wasn't קודש, the שה is not קודש. Even if by a real פטר חמור, not a ספק, the שה is not קודש. So, the only difference is by a שה that by a real פטר חמור, you can't keep the שה, you've got to give it to the כהן, but if it's by a ספק פטר חמור, you can keep it, and then you have to take, if you have 10, למשל, you have to take them all למעשר. It's not קדוש, he can keep it and do whatever he wants with it. Right, right, because it has no קדושה. But you got to do the process of redeeming it out of ספק מכל מקום. And mimela, he said, when it said in this baraita that the ספיקות go into the דיר, into the stable, and you are מעשר them, what does it mean? Not a ספק regular ספק בכור, because there there is a different problem, that it's already קודש before you can't use it, it means ספק פדיון פטר חמור. A ספק on a sheep whether this is redemption for a פטר חמור. This is It's the donkey the only treif animal animal Yeah, it's the only one. Oh, why this? So, Rashi in Chumash says, Actually, I think in the end of this week's parsha. That was. Why only a donkey has a din of of of a bechor? Rashi in Chumash in this week's parashah, at the at the end of the parashah. I didn't we didn't learn it yet, but I think it's on Shabbos because Rashi says because when the Yidden went out of Mitzrayim, the chamorim helped them carry all the stuff, you know. The dogs also. So, they got also their reward. Okay. When you learn this גמרא כפשוטו, the end of the Gemara seems to be saying, what's the maskana? תקפו כהן, מוציאין מידו or אין מוציאין מידו? If he grabs it, do you take it out or not? So, it comes out מוציאין מידו, because he had a ra'ayah. And then, Abaye thought to אשלוג of the ra'ayah, and then he said, \"My אשלוג is no good. Okay, so מוציאין מידו.\" Comes Tosafot, and Tosafot says when it says that תקפו כהן מוציאין מידו, וכן הוא מסקנא. That's the end. If תקפו כהן, מוציאין מידו. That if the kohen grabs it, you take it away from him. That's maskana. The Rambam said clearly, תקפו כהן, אין מוציאין אותו מידו, that if the kohen grabs it, you don't take it out of his hand. The she'eilah is it it doesn't make sense. It's It's in the Gemara, we see the Gemara's maskana is not like that. The Gemara's maskana is that if the kohen grabs, because they we we Abaye brought back the ra'ayah. He thought to אשלוג of the ra'ayah, brought back the ra'ayah. So, we have a ra'ayah that תקפו כהן, מוציאין אותו מידו. Again, what's the ra'ayah? I'm I'm repeating it because it's noga'a to know, because it says in the in the beraita, הספיקות, the safek, you have the ספק בכור, you have to be maaser it. And if it would be תקפו כהן, if the kohen grabs it, he keeps it, Right. then it's mamon of kohen, then there is this has a kohen has a part of it, how could you give it as maaser? So, it's a re'aya that if the kohen grabs it, מוציאין מידו, you take it away. Mimela, has kohen has no no monetary right over it, and mimela, you can It's account for And that's a re'aya. So, how does the Rambam learn when the Gemara brought a clear re'aya, and the maskana is like that? So, you have here so the Tzemach Tzedek brings a Rashba, which is actually the

Gra mentions, obviously not the Tzemach Tzedek, but he mentions here on תוספות, וכן המסקנא, soagt er. Nichte bezite. וכן דעת שאר פוסקים. Most poskim hold that the halacha is like a pashut pshat in the Gemara: תקפו כהן, מוציאין מידו. אבל הרמב״ם חולק. Come here and you can't use it for maaser, because it's a דבר אבוד. Huh? You can't use it for maaser. What's, we'll see. No, there there the braisa says you could. וכתב הרשב״א דלמסקנא דמפרש ספיקות ספק פדיון חמור, אין ראיה. דבפדיון חמור לא זכה כהן, ובספק וכו׳, החזיק בה אביו, אביי. Okay. It says like this. I thought, so the Tzemach Tzedek brings this Rashba, it's from a teshuva, and this is how the Rashba explains the Rambam. Number one, he says like this: from the wording of the braisa or the original Mishnah, where it says that if you have a ספק בכור, המעמיד מחבירו עליו הראיה, makes more sense that if the kohen grabs it, we don't take it away. Like we had in the beginning, we thought that crab is, like Rav Huna said, that it doesn't say that the בעלים, the owner keeps it, it says whoever has it, keeps it. So, he's תופס. So, that's first משמעות. But then there is a machloket in the Gemara whether that's the pshat or not. So, the Rashba says, so even if there's a machloket, since we don't know what the halacha is, so what's the din by a safek? Safek if you is it or not, מספיקא לא מפקינן ממונא. From a safek, you don't take away. So the kohen grabs it. Now there's a safek if he had a right to it or not. You can't take it back. So mimela he says, the Rambam looks at this and says, \"Well, I think it's it's תפוס, אין מוציאין מידו.\" The problem we have is on the מסקנא of the Gemara. So he comes up with this chiddush and he says, when the Gemara used this as a re'aya, it was all before the next piece of Gemara. When we said the ספיקות go in, we thought that this is a ספק בכור. A ספק בכור. So when we thought it's a ספק בכור, so if it's a ספק בכור, the she'eilah was, how could you use this as maaser if the kohen could grab it and keep it? So that's why we had a re'aya that ספק כהן אין מוציאין מידו. The end of the Gemara came and the Gemara explained that this is not a ספק בכור, but it means a ספק פדיון פטר חמור. It's a ספק פטר חמור, a donkey is is ספק פטר, and what are we dealing with? Not with a donkey. We're dealing, now you redeem this for a seh, of your own seh, and that's the one we're saying goes into take off at the maaser. So he

says, \"This is different. Now that you've changed this, the whole re'aya falls off.\" And he says, \"Why? Because by the seh, there's a חזקת מרא קמא, which means who owned this seh till now? The owner. Now you have a ספק whether that changed. That's called a חזקת מרא קמא. Maybe Maybe the חמור is the real חמור, וממילא this שה really was an exchange for the חמור and you have to give it to the כהן. No, it's no קדושה, but you have to give it to the כהן. Yeah. So he says, \"That's the פשט.\" When we thought this was a בכור, so by a בכור, there is no חזקת מרא קמא. The בכור was born לכתחילה as a ספק, so there is no חזקה that the owner has that originally it was mine, because the כלל is, if something was originally mine, then there's a ספק, did it change or not? So we say, as long as we don't know it changed, it's mine. And he says, \"When did that's the פשט of the Rambam, that when did the when did the Gemara bring a ראיה from this דין that ספק כהן מוציאין מידו? Because otherwise, we don't understand.\" How come you could do use this? That's all the way it was before when we thought we're talking about a בכור. Now we're saying that it's not a בכור, it's a פדיון פטר חמור, and פדיון פטר חמור has a separate דין. It's like it stays by it stays it's פטר, it stays with the בעלים. Why does it stay with the owner? Because he's the original owner. But going back to a regular בכור, אין הכי נמי, אין מוציאין מידו. And this דין, like you said, would not apply to a regular בכור. So he says, according to this, a red actually the Gemara says this. The Gemara says clearly that this דין that a ספק בכור would go into מעשר is not true. The Gemara asks, it can't be because it says it should become קדוש, not that it was קדוש before. So the Gemara says that this דין only applies to a ספק פדיון פטר חמור. For the ספק בכור, טאקע this דין is not applied. And therefore there's no more re'iyah that by a ספק בכור we take it away from the Kohen. The whole re'iyah was from this din, but this din is not true anymore. Now we're saying it's only by ספק פדיון פטר חמור. And the logic behind it we understand. There's a big difference between a ספק פדיון פטר חמור and a ספק בכור. ספק בכור has no חזקת מרא קמא, because it maybe it is, maybe not, but we don't know. It wasn't originally yours. It was born as a בכור as a ספק בכור. The שה is mine from before. Now I took that שה and I exchanged it. Now it's now it's a safek. Did the exchange mean that it goes to the Kohen? I don't know. So by חזקת מרא קמא חזקת מרא קמא, that's why you don't give it to the Kohen, and if the Kohen would grab it, he wouldn't get it. So חזקת מרא קמא by a ספק פדיון פטר חמור takeh it's true that אין מוציאין, מוציאין מידו. If the Kohen would grab this שה, we take it away, because this שה we pasak belongs to the owner. Why does it belong to the owner? Because it's a chazakah. But in the case of a בכור, which has no חזקת מרא קמא, there the Rambam holds a ספק כהן, אין מוציאין מידו. Isn't that like money laundering? It's like if you have a problem with your with your with your שה, so with your donkey, whatever it is, all you're going to do is change it into a שה. Boom. That's how it's kind of can't take it away. You don't have You don't owe anything to the Kohen because it's a safek. Ela mai, you have to be yotzei the mitzvah. There's two things here. There's He could've grabbed it had you not made the exchange. What could he grab? He could've grabbed the original, whatever you No, he can't grab the חמור ever. Ever? No, the Kohen has no right at the חמור. No, the חמור is yours. There's no din. The חמור, the din of חמור is it's yours. You don't give it to the Kohen. You have to exchange it for a שה and give a שה to the Kohen. So he has So once you exchange it, why Once exchanged you have to give it to him. Right. But we don't know if the exchange is a real exchange, because maybe it's not a, not a bechor. So before the exchange happened, what, what's the status of the חמור? ספק בכור. And then safek, and then if the Kohen grabbed it No, he can't grab it. Why would he grab it? He can't, he can't grab it even if it's a ודאי ח... Bechor. So why is bringing the cases to prove anything? Because, the case we're trying to prove is that since it was exchanged, it changed the מעמד, and now we have a special מעמד, and therefore So what did the חמור do here in the exchange? No, since he exchanged it, yeah, so now this is a ספק פדיון פטר חמור. Okay. It has no kedushah, but it doesn't go to the Kohen. Right. This doesn't go to the Kohen so much that if he grabbed it, he won't get it. And if you didn't exchange it and he grabbed it? What's he grab, grab what? So that's my point. Why are we saying it goes, it doesn't go to the Kohen so much that if he grabbed it he wouldn't get it, right, and before the exchange if the Kohen grabbed it he would've got it? Obviously, but had this been a real פטר חמור and then you would have to give it to him. So you're saying only because Because it's a ספק פטר חמור, you don't, you have to exchange it, but you don't have to give it to him, and not only you don't have to give it to him, the פסק דין is it's mine. So a Kohen for a real, a real פטר חמור can grab, that Kohen can grab the sheep? Yeah. The sh... the שה, yeah, if it will be a real פטר חמור, another Kohen could have gotten it could have gotten it. The she'eilah is, why can't I take it back and tell him I want to give it to a different Kohen? That's a different she'eilah. The case speaks about that it's a Kohen which I always give my stuff. Right. So if it would be a real פטר חמור, that שה belongs to the Kohen. So I can give it to him. If he grabs it, obviously it's his. But because it's a safek, I don't have to give it to him. But so much I don't have to give it, that if he can even grab it, if he grabs it, it doesn't help him because of מרא קמא, because that שה is mine the whole time. What changed? A safek, a safek doesn't work. So this how the Rambam learns. What does... this how the Rashba explains the Rambam. The question is, what does Tosafot learn? So the Tzemach Tzedek explains that the machloket between Tosafot and the Rambam is this, interesting thing. He says the בכור, a regular בכור he says doesn't have a חזקת מרא קמא because it was born already as a safek, as a ספק בכור. But it's born as a ספק בכור coming from the mother which belongs to him. So this is considered, he says, a ספק חזקת מרא קמא. Why? Why? Because the foal is by him, and it was born from his. So we look at it, we say, is it really considered a מרא קמא or not? Because it's by him and it was born from his, from his, his behemah. So he says like this, the מחלוקת between the Rambam and Tosafos is whether a ספק חזקת מרא קמא has a גדר of a, of a חזקת מרא קמא to a certain degree. And the Rambam holds that a ספק מרא חזקה is nothing, mimaila there's a big difference between the two cases. Here by the case of the ספק פדיון פטר חמור is a חזקת מרא קמא, this has no חזקת מרא קמא, not even a safek, mimaila over here the כהן grabs it, he can't take it because מרא קמא, and here he could. And Tosafos learns that a ספק חזקת מרא קמא is also a שטיקל מרא קמא, at least it's a safek, and if it's a ספק חזקת מרא קמא, so it is a מרא... like any safek, mimaila the כהן can't grab it, if he grabs it we'll take it away. That's one way the Tzemach Tzedek explains it. Then the Tzemach Tzedek explains it a little bit different, and he says I'll tell you a further step, what the מחלוקת is. Could be they all hold that a ספק חזקת מרא קמא is nothing. Even Tosafos, no one holds. Everyone holds if it's only a ספק חזקת מרא קמא it doesn't work. What is the מחלוקת here? The foal, this was born from the mother. Does the חזקת מרא קמא of the mother transfer to the ולד, to the child? The mother behemah is definitely חזקת מרא קמא, he's the owner. This came from there. Do we say that the חזקת מרא קמא of the mother goes on the child? The Rambam holds that it doesn't go, mimaila this is not, by the case of the ספק בכור, it's no חזקת מרא קמא. No חזקת מרא קמא, that's why the kohen grabs it and he keeps it. By the ספק פדיון פטר חמור where there is in that שה, in that sheep, a חזקת מרא קמא, so he says there the kohen can't take it. And Tosafot learns that it does transfer, mimela both cases we consider it a חזקת מרא קמא. So how could you make a difference? And that's what Tosafot says, that there is no difference, and therefore the re'ayah remains, and תקפו כהן, מוציאין אותו מידו. I mean, it's good, how can Tosafot hold that a trans... something transfers from a woman that the woman never had? Not a woman, mother meaning the בהמה. A mother, okay. The, I mean, a mother of a בהמה, a mother in general never had the, the issue of bechor, never had it. I know, but the, the title, the ownership is there and, and normally the child that comes from my thing is mine. So that's an extension of that chazakah. But the chazakah you're talking about is a chazakah of a ולד. No, no. One second, we're gonna get to that in a second, to see exactly. That changes it. I want to, what I want to do now is really Exactly what I was thinking. ...explain the two sevarot of the Tzemach Tzedek. I want to say they both are based on the same thing and they come out with two different pshatim, a little bit different pshatim, and it has to do with something that you were bringing up. And I want to say like this:

When it comes to a חזקת מרא קמא, or in truth, any chazakah, when we פסקן according to a chazakah, there is a chakirah, question: Is it a birur or is it a din? Does chazakah mean, let's say חזקת מרא קמא, a chazakah of of of that you were the original owner, you can learn it's a birur. We don't know if it's yours or not, but if it was yours before, we know it's yours. And someone will come and prove that it's not, someone else, עדים will come, but as long as not, it's a birur. A birur means it's a verification. We don't know, now we verified it. Or you could say no, it was yours till now, how do you know it's yours now? The Torah makes a din, there's a din that if you're the original owner we give it to you, but it's not a not a birur. We find this halachah, yeah, like Torah said. And we find this in every chazakah. Now, here's Not based on a birur? Huh? Not based on a birur? No, I mean, that's the other side. There is a side it's a birur and there's a side it's a din. But every chazakah we could we could claim this side. But a lot of see by עדות we have this שאלה and by by by migo it's, but by chazakah, I want to give an example what what the Acharonim explain this. We

find a Gemara in Ketubot that if you see a woman that's pregnant and you don't know she's single and you don't know who the guy is, so maybe the guy that she had relations with was a mamzer, a goy, ikh heyst es, who knows what? A a chalal. So now, maybe she's pasul to כהונה or not? So you go over to the woman and you ask the woman and you ask her, מה טיבו של עובר זה? Who's the father of this child? Single. Yeah, cuz I guess if you have a husband, then we say כל הבעילות אחר הבעל, that's why if a woman is married, is pregnant, we say it comes from the husband. But since she's not, so we know no husband, so who's it from? But how is she going to get a kohen anyway if she's single? Huh? No, no, she's planning to get married now. Can she marry a kohen now? Uh-huh. If she if she was with a goy, she can't marry a kohen. If she was with, let's say with a chalal, with a mamzer, she a mamzer can't marry either, but I'm saying So we ask her, and she says, \"What do you mean? This, hah, not only he's a yid, you know, he's a מיוחס! כהן הוא! מחתן מיוחס,\" she says. So the Rabban Gamliel says, we believe her. Why? Yeah. It's a migo, the Gemara goes into that, we believe her. Can we check with DNA? What is that what? No, in this case, there's like a case where she's not pregnant, she we we saw it's a long it's a long אריכות in the Gemara, let's not get into that. Comes Rabbi Yehoshua, and Rabbi Yehoshua says, לא מפיה אנו חיין. What, you're going to believe her? She can't believe her. Yes. And therefore, she's pasul. She's pasul and the child What's that again? She's pasul to marry a kohen. She can't marry a kohen because we don't know, we don't trust her. Rabban Gamliel said she's kasher. In Gemara, there's a machloket. In the Gemara on the Mishnah. One סברא says, מן דמכשיר בה מכשיר בבתה, מן דפוסל בה פוסל בבתה. Rabban Gamliel says that she's kosher, the child that's born, if if it's a girl, is also kosher to marry a kohen. And the one that says that she's pasul, the child is pasul. The second opinion in the Gemara is מן דמכשיר, מכשיר בה, פוסל בבתה. That she's mutar and the her daughter is pasul. And the Gemara asks why. You have to care for it more. No, no, why? Because she has a חזקת כשרות! She was till now kosher to the kohen. She was born kosher and she's kosher till now. Now became a safek. So there's a חזקת כשרות, the chazakah is she's kosher, so we don't have enough re'iyah to make her pasul. The child that's born was lechatchilah born with a safek! The child would have never a chazakah of חזקת כשרות. So the child is pasul. But the first opinion says, no. What's the nekudah of the machloket, I'll tell you what the nekudah is. Is this חזקה בירור or din? If the chazakah is birur, that means we're mevarer, that means like this, because she had the חזקה, חזקת כשרות, it's a re'iyah that who was the guy? The guy was a כשר'ה guy. Now, if the guy she had relations is a כשר'ה guy, then what's what's the child? Kosher! Kosher! So, מן דמכשיר בה, מכשיר בבתה. If she's kosher, the child is kosher. The other one says, no, chazakah, the חזקת כשרות is a din. She has a חזקת כשרות, so the דין is on her! The child has no חזקת כשרות, there is no דין! So here we see a clear מחלוקת whether the the חזקת the חזקה is a חזקה of בירור or דין. There is no בירור in this? There is no בירור in this? No, according to this פשט, there's no this is not a בירור, it's a דין that she has a חזקת כשרות, so she's כשר. Be'emet, we could say a step further in this מחלוקת. We don't believe her. No, this guy's this is no, we do believe her, but not we believe her because be'emet we believe her, according to the one that says we believe her, because of חזקת because there's a חזקת כשרות. So the child has no חזקת כשרות, so it's not because, if you say it's a בירור, פשט it's a ראיה we believe her, if you believe her, then the child is כשר. A דין is not stronger than a ראיה, than a בירור? Huh? A דין would not be stronger than a No, the דין is very strong, but it's only on the person The דין is. The דין is on her, she has it. Why wouldn't it extend? Like of course it So then there is the other way to learn it, that both hold, that the, so both hold בירור impossible. Because if it's a בירור, the child has to be כשר. You could say that both hold it's a דין. The שאלה is, do we look at the child as one מציאות with her? The child was part of her. So if there's a חזקת כשרות on her, there's a חזקת כשרות on the child also, or you look at the child as a separate entity. If you look at the child as the same with her, then she also, the child also has a חזקת כשרות. If you say not, then the child doesn't have a חזקת כשרות, so it's a separate entity. But the main thing I'm trying to say is that the חזקת כשרות, that if it's a בירור, then it works for the child, too. If it's not, it's not. This is the case of חזקת כשרות. Now the חזקת כשרות that we're talking about here is basically a חזקה דמעיקרא, a חזקת מרא קמא. What's a חזקת מרא קמא? The chazaka of the original owner, which a chazaka of original owner means, which we call in other lashonot, חזקה דמעיקרא. It's a chazaka from before. Whatever it is before, we assume it continues, unless you have a re'iyah that it changed. That's the pshat of chazaka of מרא קמא. What's a מרא קמא? You're a first owner, then you're an owner. The same thing here, also the חזקת כשרות we should remember here is not the same חזקת כשרות we always talk about. We talk about a Yid we don't know if he's frum or not, so we say he has a חזקת כשרות. Could you trust him or not? חזקת כשרות. That's a חזקת כשרות, that's a different thing. There are some hold that that חזקת כשרות comes from rov, because rov yidden are frum. Mimela, if you don't know, so it's stam, he's rov. There's another sevara why why we say חזקת כשרות, because a person a person is born frum. Yeah. No one's born frei. You're born frum. And as long as we don't know that that changed, we assume you're frum. But it's also the sevara that it's rov. What we're talking about now has nothing to do with rov. We're talking about חזקת כשרות of since she was kasher till now, nothing to do with rov. Since this woman was kasher till then, and now we don't know whether it changed or not, so we assume as it was before, that's how it is. So the חזקת כשרות of this Gemara where we have a machloket whether it's a birur or a din, we apply to the חזקת מרא קמא. We apply to the chazaka, the first owner. Same thing, why do we say it goes after the first chazaka, first owner? Because it's from before, just like over here. So just like over here we find the two sides whether it's a birur or a din, in the regular חזקת מרא קמא, if it's a birur or a din. And this is the yesod of what the Tzemach Tzedek says in both shitos, in the תליא. What was the first pshat? What's the machlokes between the Rambam and the others? When you have a chazakah, a חזקת מרא קמא which is a safek. What did he say? The Rambam holds that in the case of a bechor, since the child was born as a ספק בכור, there's no חזקת מרא קמא. What

did he say Tosafot holds? Tosafot holds a חזקת, ספק חזקת מרא קמא is also called a חזקת מרא קמא and the Rambam holds it's not. What's the nekudah of their machlokes? I'll tell you what it is: If חזקת מרא קמא is a birur, so by a safek it won't work. You know what a birur means? A birur means we know for sure. If you're going to say it's a, we know for sure by safek? There's no such thing. So memeila it doesn't, well maybe, there's no such thing. So if we say this is a safek, a safek is no more a חזקת מרא קמא. There's no מרא קמא. That's in fact what the Rambam holds. The Rambam says in this case where it's a real חזקת מרא קמא because that פרה belonged to him originally, there's a חזקת מרא קמא, it's his. In the case of the bechor, you're telling me it's a ספק חזקת מרא קמא, I'm telling you חזקת מרא קמא is a birur. There's no such thing as a ספק בירור, בירור ספק. So memeila that doesn't count. While Tosafot would hold that חזקת מרא קמא is a din. And if it's a din, like everything, you have a din which is a vadai and a din which is a safek. A bechor is a bechor when you have a safek. חזקת מרא קמא is a din. So a ספק חזקת מרא קמא is a din by a safek, but it's something. So this owner has on the behemah, on the bechor, on the ספק בכור, a ספק חזקת מרא קמא. The kohen

has on this bechor nothing. No no מרא קמא, no ספק מרא קמא, it's only maybe it's a bechor. And that's why the Rambam says, that's what Tosafot says, that מוציאין מידו. That's why we take it away. Why do we take it away? Because the kohen has nothing and he has something, a little a little more. So well a zero against five, five is ahead, he's got a five. Mah she'ein kein the Rambam, I'm saying, holds that there is no such thing as a ספק חזקת מרא קמא because there's no such thing as, because it's a birur. I want to say the same sevara is נוגע the second peshat of of the Rambam, of the Tzemach Tzedek in peshat in the Rambam. What was the she'eilah? The she'eilah was, does the חזקת מרא קמא of the mother, the behemah, go over to the ולד? And memela that's חזקת מרא קמא, she's helping the ולד. So What did he say is the peshat? According to Tosafot, here, it by the bechor, the safek is also called a חזקת מרא קמא, because the mother had a חזקת מרא קמא. Mah she'ein kein the Rambam holds no. And over there, and if you say the Rambam holds it's not, so I want to say it's all based on the same thing. If we say חזקת מרא קמא is a birur, so let's apply that birur here. What are we trying to be mevarer here? We're not trying to be mevarer who it belongs to. We're trying to be mevarer is it a bechor, and memeila who it belongs to. Now, what does the חזקת מרא קמא of the mother have to do with the birur to be mevarer whether this is a firstborn or not? חזקת מרא קמא means that this was originally owned by him. Does that any verification to find out that this probably is not a bechor? Has nothing to do with it! So, that's what the Rambam says, what are you telling me that the

חזקת מרא קמא is here also? And the Tzemach Tzedek says, what was the Tosafot's peshat? Why? Because the חזקת מרא קמא of the mother and child and the mother are one metziut, so there's a חזקת מרא קמא goes on the child. But if it's a birur, that's not mevarer the safek here. So if it's a regular case of a safek, we don't know if it's his or not. So we say we don't know on two things. So this has a חזקת מרא קמא, this doesn't, but if they were originally one, it's a birur that this is also because it's all one. But here the safek is not whether it's his or not. That's the result! The safek is whether it's a bechor or not! So if it's a birur, what will it do? Mah she'ein kein if you hold חזקת מרא קמא is a din, so if we look at the two as the same entity, the din is it has a חזקת מרא קמא. Whatever, it's not mevarer anything, we don't know anything better, but there's a she'eilah, who do you give it to? To this guy or this guy? So חזקת מרא קמא is a din, and that's why Tosafot holds it goes on the valad also. So it comes out that the that the Tzemach Tzedek explains the מחלוקת תוספות and the Rambam in two ways, but I'm saying they're all based back on the one svara: What is the geder of this חזקת מרא קמא, which is like the svara over there, what is the geder of the חזקת כשרות of this lady? Is it a birur, or is it a din? And mimela that applies to here. Okay? Okay.

How do you apply it by the מסוסתא? Huh? By the מסוסתא. By the מסוסתא? He started the shiur by the... No, that's just to bring how the Gemara brought the מסוסתא, it has nothing to do with it. There the din is מסיימי ידיה, אין מסיימי ידיה, חייבי ידי... אין מסיימי ידיה. Why? Because כל דאלים גבר. The question was from הקדש. Can you have a birur... You can have a birur and a din. The birur by by if who it belongs to, and the din that it's a bechor? No, why is there a din? What what will make that din? Why would the חזקת כשר... חזקת חזקת מרא קמא will make it? Okay, so then you have a din and then you can have two birurim in the same thing. What do you have a birur? There's no birur whether it's a bechor or not. The birur of bechor is whether it's firstborn or not, we don't know that. How do you know that, because he has because he's the original owner? So it's ספק ספק בכור, and with the birur that it's belongs to... A ספק בכור has no birur. that has no birur, but it's but it belongs to to No, we don't know it belongs... if it if we don't know, we don't know if it belongs to the kohen or him. The she'eilah is not who it belongs to. He has a חזקת כשרות it belongs to him, and not for בכור. חזקת מרא קמא. It's a tel חזקת מרא קמא. Yeah, but it doesn't have a חזקת מרא קמא. The mother has a חזקת מרא קמא. That's what I mean. The חזקת מרא קמא of the mother And if it's a birur, then what's that supposed to be מברר? affected by the din only that it belongs to him. But but the belonging here is dependent on בכור, whether it's a firstborn or not, and that's no birur. Why would it depend on that? Why wouldn't we know the mother No, the only reason we give it to that we have the kohen has it is because of firstborn. And that the birur of the מרא קמא will nothing מברר that. That just has to be done. So then mimela that doesn't do any good. resolve the the בכור first before you Right, right. And then if it doesn't has nothing to If it's a din who you give it to, and the חזקת מרא קמא is give it to him, okay. So the if it's one entity it goes on it, but it's no birur. Okay.

Yishar koach, yishar koach. I'm suing you. Sounded like you stopped in the middle and Left out a quarter of it. or a third or something. Left out three quarters. Little short. No, because something else was coming. Yeah, yeah, I know. Yeah? Were we listening? Oh. You didn't give the whole, though, there's on, no? I don't care, next week he'll give it all. We'll do next week. You can pay this first, and then I can sue him together. by you also? No, you don't take it. Yeah, how long they going wait till comes back? They go to Shacharit? They go to Shacharit?