Tractate Bekhorot opens not as might be expected with the sanctity of the firstborn animal, but with the circumstances in which that sanctity never takes hold. The first mishnah (Bekhorot 2a) rules that one who purchases the unborn offspring of a non-Jew's donkey, or sells the unborn offspring of his own donkey to a non-Jew, or enters into partnership with a non-Jew in the animal, is exempt from the laws of the firstborn. The Talmud (ibid., 2b–3a) applies the same principle to kosher animals, on the basis of the Torah's designation of the firstborn "in Israel" (Num. 3:13); an animal owned even in part by a non-Jew is not a Jewish firstborn, and no sanctity attaches to it.

In its original context, this is simply a boundary of the law. In the contemporary era, it has become the primary way the law is addressed in practice. The question of how that came to be, and how the sources evaluate it, touches on a much larger question: how halakhah regards a legal mechanism that allows one to avoid an obligation altogether.

In Hebrew, the term often employed in connection to this subject matter is ha'aramah, and it itself contains ambiguity and multiple implications. At times, it connotes "evasion," and imputes dereliction to the one who employs it. In other contexts, ha'aramah has more of a neutral message to it, suggesting perhaps a "sidestepping," a path that certainly does not embrace challenge, but maybe because there is a good or at least acceptable reason to avoid that challenge; at times, the Talmud uses this word as part of a recommendation presented without judgment (see, e.g., Mishnah Ma'aser Sheni 4:4). In still other sources, the word is used to represent outright deception, utilized to describe a possible abuse of a situation in which dishonesty will not be detected (Yerushalmi Pesachim 2:2). Maimonides, cited by the Tosafot Yom Tov (Temurah 5:1), asserts that a permissible tactic is called "aramah," while one that is prohibited is called "mirmah."

As Rabbi Moshe Sofer noted in a responsum on the subject (Resp. Chatam Sofer, OC 62), the translation of ha'aramah is elusive, as it clearly changes from one context to the next, and necessarily, the attitude changes with it. Moreover, whether or not the label of ha'aramah should even be affixed is generally an open question. This circular phenomenon appears repeatedly in the literature: debate over whether a particular approach is a ha'aramah, and if it is, if that is a bad thing in the first place.

The Obligation and Its Difficulty Today

A male animal of cattle, sheep, or goats that is the first to open its mother's womb (peter rechem), and is owned by a Jew, is sanctified from birth (Ex. 13:2). In the era of the Temple, it was given to a Kohen and offered on the altar. Without the Temple, it cannot be offered, yet it retains its sanctity (kedushat bekhor) with all the restrictions that follow: it may not be put to work, its wool may not be shorn (Deut. 15:19), and it may not be slaughtered as an ordinary animal.

The only resolution is for the animal to develop a permanent disqualifying blemish (mum) on its own, as causing one deliberately is forbidden (Bekhorot 33b–34a). Once an expert (mumcheh) certifies the blemish as permanent, the Kohen may slaughter and eat the animal. In the meantime, which may be years, the animal must be kept, and every day carries the risk of an inadvertent violation: a sheep shorn with the rest of the flock, an ox harnessed with the others, a blemish brought about through negligence or worse.

The human firstborn poses no comparable difficulty. Bekhor adam is an obligation of redemption (pidyon), readily fulfilled today; bekhor behemah tehorahcarries intrinsic sanctity of the body (kedushat haguf), like a consecrated offering, which without a Temple can never be brought to its completion.

What Is Done: Partnership with a Non-Jew

Because of these difficulties, the standard practice is to prevent the situation from arising in the first place. Before the animal gives birth, the Jewish owner sells a share in the mother animal, or in the unborn offspring, to a non-Jew. Since the animal is not wholly Jewish-owned, the sanctity of the firstborn never takes effect, and the offspring may be raised, worked, shorn, and slaughtered like any other animal. Farms and herds under rabbinic supervision are commonly arranged in this way, in a manner often compared to the sale of chametz before Pesach. If a firstborn is born without such an arrangement, the owner must consult a halakhic authority as to how to proceed.

The Case of Mari bar Rachel

The Talmud itself addresses one instance of this "sale approach," and its treatment of it may surprise one who is familiar with the contemporary practice. It is related there (Bekhorot 3b) that Mari bar Rachel would transfer ownership of the ears of his cows' unborn firstborn to non-Jews. Even so, he acted stringently, treating the offspring as if they had sanctity: he did not work them or shear them, and he gave them to Kohanim. Nonetheless, the Talmud indicates there was something inappropriate about what he did, and it did not end well. Two explanations are offered as to what the offense was, especially given his stringent treatment of the animals, as if he had not taken any steps to escape any obligation.

The first answer addresses the spiritual impact of what he did. Even though his conduct was just as exacting as it would have been regardless, he still removed these animals from a status of sanctity.

The second answer addresses a secondary practical impact. Even though he was knowledgeable and able to properly address all aspects of the situation, a less knowledgeable individual may witness his actions, attempt to do the same, and fail to execute it properly.

Mitzvot as Divine Will, With or Without Obligation

While the specific parameters may be debated, a clear principle certainly emerges, establishing the value of the positive mitzvot of the Torah, even when escape from obligation is possible, and even when that obligation has not yet materialized.

This desire to fulfill the will of God, with or without formal command, is what characterized the forefathers, who devoted themselves to God before the Torah was given, and, according to the Talmud (Yoma 28b), fulfilled the principles of the Torah that they had intuited through their own philosophical insight (see Resp. Rashba, I, 94). Notably, the Maharal of Prague (Gur Aryeh, Gen. 46:10) assumed this initiative was limited to what would be the positive commandments of the Torah, as it was specifically these that represented inherently valuable acts, even prior to formal command. Likewise, these actions continue to have inherent value, and to seek an escape from them is frowned upon.

The attitude goes to a fundamental principle of religious duty, and is reflected in a Talmudic passage (Menachot 41a) regarding the Biblical commandment of tzitzit, which is mandatory only for a garment that is both four-cornered and made out of certain materials. Accordingly, one can easily choose not to wear such a garment, and thus escape any obligation of tzitzit.Nonetheless, the implication of this passage is that it is wrong to maneuver oneself into an exemption through strategic ploys (tatzdeki), and, furthermore, at times of Divine anger, there may even be punishment in store for one who does so. Rabbenu Yonah (Sha'arei Teshuvah, 3:22) explains that punishment is warranted for this individual who "did not desire in his heart the beauty of the mitzvah and its reward."

What is expressed here is the premise that a technical commandment is a formality that conveys the fact that the Divine will is that the act be performed. One may escape the reach of the obligation, but that does not erase the fact of the Divine will.

The fervent prayers offered by Moses at the end of his life, begging for a repeal of God's decree not to allow him to enter the Land of Israel, are easily understandable on an emotional level. Nonetheless, the Talmud (Sotah 14a) provides an explanation that speaks to an additional element. Many of the mitzvotcan only be performed in the Land. Moses would not have the opportunity to become obligated in these mitzvot. This exemption provided him with no relief; he desperately wanted, and pleaded, to become commanded by these precepts and to realize their fulfillment.

The Talmud offers a parallel regarding tithes (Berakhot35b). Earlier generations would bring their produce into their homes by way of the main entrance, specifically in order to render it obligated in tithes; later generations brought their produce in by way of roofs and courtyards, in order to exempt it. The Talmud presents the contrast as a decline. The later generations violated nothing, since produce brought in that way is legitimately exempt; their failing lay in the desire to avoid the mitzvah at all.

Rabbi Hershel Schachter notes (B'ikvei HaTzon, 15:1), based on a comment of Tosafot on the bekhordiscussion (Bekhorot 3b), that the sources indicate that if the law at hand is a positive commandment, it is wrong to implement a ha'aramah. When a negative commandment is involved, by contrast, there is no objection to avoiding its application through a ha'aramah. The rationale is apparent; as a positive mitzvah represents an active obligation, it would be wrong to attempt to escape that responsibility. However, in the case of a prohibition, if it is simply rendered inapplicable, nothing is lost.

Rabbi Schachter also considers possible distinctions within the category of positive commandments. One is between avoiding a commandment that is already in force and avoiding one before it officially takes effect (per Mishnah Achronah to Negaim 14:13), a distinction of clear relevance to an animal that has not yet been born. Another is between an action that effects permissibility through its performance (a matir), and an actual imperative with inherent value (see also the discussion in Sha'arei Osher: Shiurim B'Aggadot Chazal, 50). The sanctity of the firstborn, which the Torah presents as a gift to God and to His Kohanim, would seem to fall on the side of inherent value.

Rabbi Asher Weiss, in his responsum on the subject (Resp. Minchat Asher, II, 45), ultimately concludes with a similar distinction. He asserts that a ha'aramahto avoid a positive obligation is not subject to an actual prohibition, but is instead a general shirking of religious commitment and against the "will of the Torah." In his formulation, avoiding a prohibition, while less objectionable, is not completely neutral; it should only be done in response to some kind of need. The ha'aramah is thus not measured only by the category of the law it avoids, but also by the attitude it expresses and the necessity that prompts it.

Why the Codifiers Call It a Mitzvah

Against this background, the practice of selling a pregnant animal to avoid the obligations of kedushat bekhor is striking. While as noted, the Talmud appears to be critical of this practice, it seems that in that era there were alternatives. In contemporary times, however, the codifiers of Jewish law (Tur and Shulchan Arukh, YD 320:6) have ruled that it is a "mitzvah" to enter into joint ownership with a non-Jew in order to avoid any mishap in this area.

It is possible to posit a general approach to the question, in the form of a sort of formula, to explain the degree of acceptance and/or resistance to any one of these mechanisms. The formula would consist of four parts: (A) the letter of the law; (B) the spirit of the law; (C) the sincerity, or integrity of the approach; and (D) the level of need, or urgency. Part (D) is a component of the formula that is always a factor but varies in importance, in relation to the strength or weakness of the first two factors. Ideally, the rules of the Torah would be upheld in their fullest and most faithful sense. If Part (B), for example, were to be particularly weak, a greater degree of need would have to be present to justify the implementation of the mechanism.

The sale of the animal is on solid ground regarding Part (A), as the sale indeed brings about this result. However, it is less impressive on Part (B), as the sale completely circumvents the mitzvah and its responsibilities, directly comparable to the later generations who avoided the obligation to tithe their produce. The crucial distinction lies in Part (D): the animal owners have no alternative available to them, while the produce owners of the Talmudic era could simply have participated in the tithes, as the Torah intended. Accordingly, the plan of the produce owners is condemned, while that of the animal owners is advocated. This reflects only one kind of "need," in fact a nobler kind, the drive to most appropriately address a halakhic conundrum.

The Bekhor Shor: Ha'aramah and Torah Law

In attempting to clarify why such mechanisms are sometimes embraced and sometimes resisted, one factor that has been noted is a distinction between Torah law and rabbinic law, with a ha'aramah being acceptable for the latter but not for the former. The view is frequently associated with the Bekhor Shor, Rabbi Alexander Shor (c. 1672-1737), who staked this position in connection with the sale of chametz. As his position is understood, he asserted (Chiddushimto Pesachim 21a) that mekhirat chametz is a ha'aramah, and accordingly should only be utilized in connection with chametz that is prohibited only on a rabbinic level.

Statements either in support or in challenge of his view are relevant to two separate components of his statement: first, that mekhirat chametz specifically is considered a ha'aramah; and second, that any mechanism deemed a ha'aramah should only be implemented in cases of rabbinic law. This second premise is supported by the Bekhor Shor through a reference to a Talmudic passage (Shabbat 139b) which does contain a phrase suggesting that only a "ha'aramah b'drabanan" is acceptable. However, that usage is arguably different, in that it refers to the performance of an actual rabbinic violation, under the pretext of a permissible act, in contrast with the mechanisms under discussion here which avoid the situation of halakhic applicability. This discrepancy is presumably not an oversight on the part of the Bekhor Shor, but rather it is a part of his overall premise; he sees mekhirat chametz itself as a charade, and therefore appropriately compared to the scenario discussed in the Talmudic prooftext. Essentially, in his formulation, the two components are intertwined: the methods under discussion are inherently disingenuous, and are therefore unacceptable in conjunction with Torah law.

There is extensive debate among later authorities as to whether the stance of the Bekhor Shor is accepted as normative, and the literature on the question is vast. Those who agree with his position include his grandson, Rabbi Ephraim Zalman Margolios (Resp. Beit Ephraim, OC 33, and in his essay Makneh U'Kinyan), the Yeshuot Ya'akov (OC 13:4), Rabbi Zvi Hirsch Chajes (glosses to Bava Metzia 90b), Rabbi Shlomo Kluger (Chokhmat Shlomo, OC 448:7), and Rabbi Chaim Berlin (Resp. Nishmat Chaim, 100); a full volume, Tevuot B'Koach Shor (2003), was devoted to analyzing and defending his view. Those who disagree include Rabbi Ya'akov of Lisa (Resp. Nachalat Ya'akov, 1), and the Chatam Sofer (OC 63), who displays that the factors that influence the acceptability of a ha'aramah are very diversified and do not correlate at all to the origin status of the relevant mitzvah. The Tzemach Tzedek (YD 102) notes that the Shulchan Arukh HaRav (YD 48) also writes that a ha'aramah "is not effective at all by Torah law," but that the implication of the Talmud is against this. Rabbi Ya'akov Breisch (Resp. Chelkat Ya'akov, EH 24) establishes a definition of ha'aramah as something that is inherently false, rather than simply motivated by ulterior considerations. Rabbi Ovadiah Yosef (Resp. Yabbia Omer, X, YD 38:3) surveys much literature on the topic and is inclined to disagree with the Bekhor Shor on all of his assertions, maintaining that "all of the acharonim" have refuted his view and accept ha'aramot even in areas of Torah law.

It is also not even clear that the Bekhor Shor himself opposed the sale of chametz as such. Rabbi Chaim Chizkiyah Medini, in his S'dei Chemed (VIII, ma'arekhet chametz u'matzah 9:15), notes that the Bekhor Shor's main subject is the sale of animals over Pesach, together with the chametz they are fed, which he believes is done insincerely and is both ineffective and unnecessary. Regarding the sale of chametz itself, however, he seems to concede that the owners, seeing no better option available, will sell the chametz with complete commitment, and thus it will be a genuine transfer. This is also the position recorded by his descendant Rabbi Chaim Mordechai Margolios (Sha'arei Teshuvah, OC 448:8), citing his uncle, who was the son of the Bekhor Shor. If this is correct, then even the Bekhor Shor did not oppose mekhirat chametz in and of itself, when the sale is genuine; his objection was to the sale that is not.

For the present question, the difficulty is clear. As a Torah commandment, the sanctity of a firstborn animal would seem to be ineligible for a sales mechanism, according to the position of the Bekhor Shor. This was raised as an objection to the original position by Mekor Chaim (448:11), as well as by Rabbi Yitzchak Eizek Chaver (Resp. Binyan Olam, OC 21), and many others. This is also the concern raised by the questioner in Resp. Har Zvi (YD 253), and thus the reason for alternative approaches considered by Rabbi Zvi Pesach Frank in his responsum there (see also Rabbi Meshulam Roth, Resp. Kol Mevaser, I, 62, and Rabbi Eliyahu Kalatzkin, Imrei Shefer, 64).

Several resolutions emerge. Presumably, the Bekhor Shor's tolerance of this possibility indicates that great need justifies a ha'aramah even for Torah law according to his view as well, reflecting the degree of variability in the formula under discussion.

The Chatam Sofer (Resp. Chatam Sofer, OC 62) understands the Bekhor Shor's view to be that the prohibition to utilize ha'aramah regarding Torah law is itself a rabbinic enactment, and in the case of bekhor, given the lack of viable alternatives, the Rabbis did not impose it. The Maharsham (Resp. Maharsham, IV) cites this responsum and notes that bekhor is a unique situation in which, had ha'aramot not been available, there would be no choice but to outright permit, and that the Bekhor Shor would agree in this case (but see also his different approach in IX, YD 71).

The Maharsham elsewhere (Resp., III, 124) puts forward a rationale for such a rabbinic prohibition that is, in a significant sense, the inverse of the Bekhor Shor's position. He grants that those who engage in ha'aramot can do so with full sincerity. However, the appearance that is created is one of neglect, or even violation of halakhah. This, in turn, triggers suspicion (chashad) in observers, and thus is behavior the Rabbis prohibited. The concern echoes the second explanation offered in the case of Mari bar Rachel, which focused on the observer rather than the actor.

The Bekhor Shor's grandson, Rabbi Ephraim Zalman Margolios, in his Makneh U'Kinyan, asserts at length that his grandfather would not have considered this sale a ha'aramah at all. It is distinct from the sale of chametz, as he would not have had the same reasons to assume the sale to be insincere (see also Mishpat HaKinyan, IV, p. 132).

Making the Sale Genuine

This is the concern of Part (C), sincerity. If it is claimed that there is a sale taking place, that claim must be examined for sincerity. If it were to be a sale in name but less so in fact, that would undermine the legitimacy of the approach at hand, and thus manifest, in a different way, an abdication of the spirit, even if the letter is superficially maintained.

Even where the sale was accepted, there were authorities who felt that the appearance of ha'aramahwas too strong and led to an attitude of insincerity in the populace. Accordingly, various suggestions were advanced in order to enhance the process. For example, it was advocated that the owner sell only one limb of the animal, as even joint ownership with a non-Jew exempts from the obligations of bekhor. Then, after the animal was eventually slaughtered, that limb would actually be given to the non-Jew, making the sale genuine in all senses of the word (Rabbi Moshe Ze'ev Margolios, Resp. Agudat Ezov, 14, and, at great length, Resp. Chut HaMeshulash, II, 4).

Further, as others noted, selling a small part of the animal, even without physically transferring it, allows for the setting of a realistic price, which can be paid upfront (see Shulchan Arukh HaRav, Hil. Mekhirat Behemah HaMevakeret, s.v. m'inyan).

These refinements respond directly to the two concerns raised in the case of Mari bar Rachel. A sale that is real in substance, at a real price, with a real transfer, is less likely to breed a casual attitude toward the evasion of obligations among those who observe it. The discomfort with removing an animal from sanctity remains, but it is answered by necessity rather than dismissed.

Addressing Halakhic Challenges in Practice

The treatment of bekhor in the contemporary era thus reflects a consistent structure. A legal mechanism that exempts one from a mitzvah is not neutral; the Talmud regards the desire to escape a positive obligation as a failing, even when no violation is involved, and even when the escape is undertaken by one who continues to act stringently. At the same time, where the obligation cannot be fulfilled as the Torah intended, and the realistic alternative is a sustained risk of violation, the same mechanism becomes the preferred course, to the point that the codifiers call it a mitzvah. The objection that a technical device should not be effective against Torah law is met in part by that same necessity, and in part by the insistence that the device be made as genuine as possible.

The measure of such arrangements, then, is not only whether they work, but why they are needed and how they are carried out. The later generations who brought their produce over the roofs had an alternative and declined it. The owner of a pregnant cow in an era without a Temple has none, and in selling a share of it to a non-Jew is not escaping the will of God but protecting a sanctity that cannot, for now, be properly honored.

The mission of the Jew in this world is to live by the word of God in all his deeds. However, it is not only the word that commands, it is also its meaning, the message within. The challenge is to consider how both the letter and spirit of the law can best be given maximal expression within the challenges of daily life in the real world. At times, the voice of the spirit of the law will be barely audible, as the apparent exigencies of the moment crowd it out. Nonetheless, that still small voice can be discerned by those possessed of the long view. The sale of a share in an animal is not a hollow structure; it is a bridge, allowing the essentials of the halakhic system to stretch from one generation to the next, until the letters of Torah law can be reunited with its values, and a rebuilt Beit HaMikdashreceives the firstborn once again.

An attitude of cynicism, by contrast, is corrosive to the soul and damaging to the commitment needed to bring the Divine word to life. To the extent one feels that his practice is not only rote but is insincere, that the rules of Jewish law are simply regulations devoid of meaning or message, the negative impact will be felt in every area of spiritual life. Sincerity, ultimately, lies within the individual. One may sell a share of one's animals, or one's chametz, but one need not sell one's soul.