לזכות ר' יוסף עזרא בן אסתר וכל ב"ב
First a few preliminaries and then the kashya.
We pasken that one may sanctify an animal while it is yet in utero and thus prevent the kedusha of bechor from taking effect after birth [Temurah 24b].
The Torah says that one may not sacrifice an animal before its 8th day. The gemara [Yoma 63b] adds that not only may one not bring the animal as a sacrifice but one may also not sanctify [מקדיש] the animal before the 8th day. Tosafos ask [Zevachim 12a, Yoma 10a] – How then may we sanctify a fetus which is not yet 8 days old? They answer that since it is not yet fitting to be brought as a sacrifice, there is no prohibition to sanctify it.
The gemara [Temurah 25] asks what the din would be if a first born animal was sanctified as an Olah while still a fetus and the sanctification would take effect after most of the animal comes out. Would it become a Bechor or an Olah?
The Chebiner Rov, Rov Dov Beirush Weindenfeld [שו"ת דובב מישרים ח"ג סי' ס"ב] was presented a question based on the foregoing, asked by the progidous bachur Yosef Altman הי"ד: How can the gemara consider the possibility that this animal will be an Olah? The sanctification was to take effect AFTER the animal is born and thus is already fitting to be brought as a sacrifice. According to what we learned from Tosafos – an animal that is fitting to be a sacrifice may not be sanctified before the 8th day?
Ahhhhhhhhhhhhhh!
Answered the Rov –
נ"ל ... כיון דאמירתו היתה בשעה שהיה עוד העובר במעי אמו רק חלות ההקדש התנה שיהיה ביציאת רובו, הוי כאילו הקדישה במעי אמו דאזלינן בתר אמירה.
Since the proclamation of sanctification [הקדשה] was done when the animal was still a fetus – we follow that time and not when the sanctity was to take effect after birth. Hence the hekdesh has the capacity to take effect.
He gives an example from the world of Terumos and Maasros. There is a din that one may only separate Terumah מן המוקף - namely that the Terumah and the fixed, leftover produce are near each other. The Ra"sh [Challah 3/1] taught that if one separated Terumah so that it would only take effect after a certain period of time, then even when if it is not מן המוקף when it takes effect it doesn't matter, as long as it wa sמן המוקף when he originally separated the produce. Similarly, since when he was originally מקדיש the animal was not yet fitting to be sacrificed, the הקדש is valid even though it was before the 8th day.
Good one!!!
But it's not so pashut!:-)
The halacha is that if one marries a woman after thirty days and in the meantime the shtar ripped or was lost then the marriage doesn't take effect. Why don't we say that since the shtar was extant originally, it doesn't matter what happens later? According to the Chebiner we should follow the time of the original giving of the shtar!
Suggested Rav Avraham Genechovski ztz"l: Maybe we can answer that there is a fundamental difference. In the Kiddushin case – the kinyan can't take effect in the absence of a shtar. With respect to the korban – the חסרון is just in the animal that it may not be made הקדש now [after it was born]. In the latter case we may follow the time of the original הקדש and not the time when it takes effect.
וצריך עוד עיון!
