Paid to Inspect Bechorot

Bechorot (2:5) | Yisrael Bankier | 4 years ago

We have learnt that if a bechor develops a mum (blemish), such that it can no longer be brought as a korban, it is still given to the kohen. The kohen is able to slaughter the bechor and consume its meat. We have also learnt that the animal must first be inspected by a mumche – an expert that is authorised by the nasi for this task (see Bartenura 4:4). The Mishnah (4:5) teaches that if the mumche is paid, then his ruling cannot be relied upon. The Mishnah does however provide an exception for an expert like Ila in Yavneh who would take a fixed fee irrespective of his conclusion. We shall try to understand the ruling of this Mishnah and the exception for those like Ila.

The Bartenura explains that the concern in the Mishnah is that if the expert was to receive payment, it would act as incentive for him to permit the bechorot. To explain, it is in the interest of the kohen for the bechor to have a mum, so that it would become his personal property. To please his paying clients, the expert may then tend to permitting bechorot even in cases where the issue did not qualify as a mum. This is also the position of Rashi (28b s.v. ein).

The Rashash however asks that we see in the continuation of the Mishnah that even Ila, the exception, could only rule if he was taking a fee irrespective of the conclusion. This implies that had he taken the fee only when ruling if the bechor had a mum, then we would be concerned that that was swaying his judgment. We find therefore that regarding everyone else, even if they received a fee irrespective of the conclusion, it would invalidate their ruling. Consequently there appears to be a different issue for everyone else.

The Ramban however explains that the issue is what we learn in the next Mishnah – a judge cannot be paid. How then could Ila be paid? The Rosh (4:5) explains that since Ila was the world expert, and was pre-occupied with inspections all day, compensation for his time (schar batala) was necessary.

If we wish to persist with Rashi’s explanation that this issue is one of trust then we need to first look in the Gemara. The Gemara (39a) asks why Ila received payment for both rulings. The Gemara understands why he received a payment for ruling that the animal had a mum, since the owner ultimately benefit from that ruling. Why then did he receive payment for a case where he ruled that the blemish would pass? The Gemara explained that had he not received payment in both cases then one might think he ruled that the animal had mum so that he could collect his payment. The Gemara however asks that if he receives payment for ruling that the blemish will pass, this might then motivate him to rule that way, considering that the kohen will need to keep returning to the mumche until he rules that it is indeed a mum and he can receive payment each time. The Gemara answers that Ila would only get paid for the first inspection of the animal, but not for further visits; so there would be no basis for this concern.

The Tosfot however raises a further concern based on the Gemara’s answer. If Ila would not get paid for any further inspections then we should be concerned that he would rule that the animal had a mum to avoid further free visits. The Tosfot provide two answers. The first is that the Chachamim would not obligate Ila with any further inspections anway. The second, is that we are not concerned that someone like Ila would always permit a bechor just to avoid further inspections.

Based on the Tosfot’s explanation, the Rashash answers our original question. He first explains that there is a difference between Ila and everyone else based on the second answer of the Tosfot. Unlike Ila, if the first inspection was paid for irrespective of the ruling and further inspections were free, then others might be motivated to rule that the animal had mum to avoid further consultations. The Tifferet Yisrael also provides this answer. According to the first answer that he was not obligated to inspect the animal again, a regular mumche is still different to the chief inspector. Given that the regular mumche was selected amongst other and asked to inspect the animal, even if he receives payment for either ruling, he might still want to provide his customer a favourable ruling and rule that the animal indeed had a mum.

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