Kicking a Bechor in Self-Defence

Bechorot (5:4) | Yisrael Bankier | 14 hours ago

The Mishnah (5:4) discusses a case where one was being chased by an animal that was a bechor and kicked that animal. The Mishnah teaches that if, because of the kick, the bechor developed a mum such that it could not be offered as a korban, the kohen can slaughter and consume the korban based on that mum. This is despite the fact that if one deliberately inflicted a mum on a bechor, violating a biblical prohibition, one would need to wait for another mum to develop to slaugher the bechor.

The Gemara (35a) records two different version of Rav Papa's comment on the Mishnah. The first is that the rule of the Mishnah only applies if the person kicked the animal whilst being pursued, but not if he kicked the animal after the fact. Even though it might appear obvious, the novelty is that one might think that the reason he kicked the animal was because he was upset that he was attacked and not because he wanted to inflict a mum. Nonetheless, this mum cannot be the basis on which to slaughter the bechor. The other version of Rav Papa's comments is that even if he kicked the animal after the pursuit, the rule in the Mishnah still applies.

The Rambam (Bechorot 2:11) rules like the second version of Rav Papa's statement -- the more lenient version -- as does the Ramban. The Rosh cites the Ramban and asks how we can rule like the lenient version. Considering that the prohibition of deliberately inflicting a mum is biblical, one would expect that we rule stringently in this case.¹

To explain the Ramban, the Rosh suggests that perhaps the reason is that even though inflicting a mum is biblically prohibited, the prohibition of consuming the animal based on the mum is rabbinic. The Mahri Kurkus elaborates that the only difference between the two versions of Rav Papa is whether the animal can be consumed if kicked after the attack. Considering that that is a rabbinic issue, there is no issue with ruling leniently.¹

The Pri Yitzchak (I: 40) however cites the Ohr Zaruah who rules like the first, more stringent version of Rav Papa. He cites the reasoning of the Rabbeinu Tam that when the prohibition is biblical, we rule like the more stringent version. The Pri Yitzchak however cites the suggestion of the Rosh and asks that the issue at hand, whether the animal can be consumed based on the mum, is rabbinic. Consequently, there should be no reason not to rule leniently. The Pri Yitzchak therefore explains that according to the Ohr Zaruah, since the core doubt relates to prohibition of inflicting a blemish -- which is biblical -- he rules stringently. This is even though the practical ramification is rabbinic.

The Pri Yitzchak continues by returning to the Rambam and Ramban. It is not certain that their reason for ruling leniently is because they understand that the issue is rabbinic. Instead, they might simply follow the principle that when two versions are cited in the Gemara we rule like the second understanding.²

¹ The Korban Asham answers that the Gemara was referring to the bechor nowadays, where the prohibition of inflicting a mum is rabbinic. The Pri Yitzchak however understands from the *Rosh'*s questions that even today the prohibition is biblical.

² The Pri Yitzchak explains that this indeed is the practice of the Rambam and other Achronim, where as he leaves it as a suggestion when considering the position of the Ramban.

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