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Nazir, 27

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, then it should follow also that it applies only to money and not to *birds*. We find, though, that Rav Chisda states that if 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 that she buys the birds, or when the Kohen offers them on the Mizbe'ach. If birds are not considered like "Ma'os Setumin," then why should this be? (The Kohen should not be able to designate the birds at the time that he offers them, because the birds should already be considered designated, "Mefurashin"!)

TOSFOS (see previous Insights) explains the question of Rav Shimi bar Ashi as follows. After the owner buys the pair of birds, he cannot choose which one will be the Chatas. Rather, the Kohen -- when he offers them -- chooses to offer one as the Chatas and one as the Olah. Since the owner could not choose which one is going to be the Chatas, and the birds must wait in their undesignated state, we should be afraid that as time passes the owner might designate one in his mind as the Chatas and the other one as the Olah.

There are a number of problematic points with this explanation, as pointed out by the RAM cited in Tosfos.

(a) In what way can the owner designate either bird as a Chatas or an Olah in his mind? Rav Chisda states that even if he verbally declares which one is the Chatas and which is the Olah, his declaration does not take effect! How, then, can it be more effective if he designates the Chatas and Olah in his mind?

(b) Tosfos says that Rav Shimi bar Ashi's question is based on the understanding that the Kohen could designate either bird as a Chatas without asking the owner if he already designated one of them as the Chatas. How could he *not* ask the owner? Since the owner is able to designate one bird as a Chatas and one as an Olah at the time that he buys them, the Kohen obviously must ask the owner whether he designated them at the time that they were bought! (ARZEI HA'LEVANON)

Perhaps we might suggest that the Kohen infers from the fact that the birds were given to him mixed up, without any instructions from the owner, that the owner did not designate either one as a Chatas or Olah yet. However, if this is true, then why should we be concerned that the owner might have chosen one in his mind to be the Chatas *after* purchasing them? He would have told the Kohen if he had chosen one as the Chatas!

(c) Why does Tosfos write that the Kohen should not be able to designate one as the Chatas "if the owner is present" without asking the owner if he already designated the birds for their respective Korbanos? Tosfos should have said that the Kohen should never be able to designate the birds without first confirming that the owner did not designate them, whether the owner is present or not! (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 numerous Mishnayos that discuss the case of a Ken Setumah (a pair of birds that were not unspecified)? According to Tosfos' explanation, we can never deal with any Ken as though it was Setumah, since the owner might have designated one of the birds already for the Chatas!

ANSWERS:

(a) Tosfos maintains that the owner cannot designate one bird to be the Chatas and thereby make it a full-fledged Chatas after purchasing it (with regard to "Chatas Mesah" if the owner dies). However, he *can* determine which one the Kohen will have to make into a Chatas at the time that it is offered. If the Kohen offers the other one as a Chatas, it will not be valid. The Kohen is limited to designating as the Chatas the same bird that the owner designated in his mind. The owner can determine which bird the Kohen needs to choose in this manner not only by speaking it out verbally but even by thinking it in his mind, because Dibur, speech, is not necessary in order to make 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 he purchased them. However, the Kohen may *not* infer that the owner never thought to himself that he would like one to be the Chatas. This is because most people are not aware that such a thought would affect the status of the birds since the time of their purchase has already passed. That is why Tosfos suggests that the person might *think* that this is a Chatas, and not *say* that it is a Chatas, since it would not occur to the owner to verbally designate one as a Chatas once the time of purchase has passed. He might, however, inadvertently *think* that he wants one to be the Chatas. Since the owner might have made one a Chatas without realizing the effects of his thoughts, the Kohen would have to ask him if he ever thought in his mind that one of the birds should be the Chatas. Since Rav Chisda says that the Kohen may offer the bird without asking the owner anything, we may infer that we do not suspect that the owner designated one as a Chatas just because it was in his possession for an extended period of time.

(c) Why does Tosfos write that the Kohen should not bring the Korbanos without asking the owner when the owner is present? If the owner is not present, the Kohen certainly cannot offer them! The answer is that the concern that an owner might have designated one of the birds as a Chatas is only mid'Rabanan. Therefore, Rav Chisda, who is discussing the Halachah of the Torah, is correct in saying that according to the Torah the Kohen may offer the Korbanos without conferring with the owner, since he does not have to suspect that the owner already made one of the birds into a Chatas. However, if the owner is present, and it is possible to determine whether or not the owner designated one as a Chatas by simply asking him, then even mid'Oraisa the Kohen should have to ask the owner and clarify the doubt about the bird. If the owner is present, the Torah would be Machmir and require the Kohen to ask him about it since it is possible for him to clarify the doubt. Since Rav Chisda says that even if the owner is present the Kohen does not have to ask him, that implies that there is absolutely no reason for concern that the owner made one of the birds into a Chatas, and, consequently, the Rabanan have no reason to make a Gezeirah prohibiting the Kohen from choosing one as a Chatas, b'Di'eved, if the owner is not present.

(d) All of the other Mishnayos which discuss a Ken Setumah do not pose a problem on the statement of Rav Huna in the name of Rav. Those Mishnayos might be discussing cases where the owner is present and asserts that he never mentally designated either bird for any specific Korban. However, Rav Chisda's statement implies that it is not necessary for the owner to declare that he did not designate the birds, and the Kohen may assume, therefore, that the birds were not designated.

27b