Babylonian Talmud: Tractate Yebamoth

Folio 83a

Our Mishnah¹  cannot be maintained in the presence of the following Baraitha. For it was taught: R. Jose stated, 'The hermaphrodite is a creature sui generis, and the Sages did not determine whether he is a male or a female'.²  On the contrary; the Baraitha²  cannot be maintained in the face of our Mishnah!³  — As R. Jose left his colleague⁴  it may be inferred that he changed his opinion.⁵

Samuel, however, said: The Baraitha²  cannot be maintained in the face of our Mishnah.³  On the contrary; our Mishnah³  cannot be maintained in the face of the Baraitha,²  since Samuel was heard to take note of an individual opinion!⁶  — This⁷  applies only to a case where the Mishnah is not thereby uprooted; when the Mishnah, however, is thereby uprooted it need not be taken into consideration.

At the school of Rab it was stated in the name of Rab that the halachah is in agreement with R. Jose in respect of the hermaphrodite and grafting; and Samuel stated: In respect of protracted labour and forfeiture.

As to the 'hermaphrodite', there is the ruling just mentioned.⁸  'Grafting'? — As we have learned: There must be no planting, no sinking⁹  and no grafting on the eve of the Sabbatical Year¹⁰  within thirty days before the new year; and if one planted or sank or grafted, the tree must be uprooted.¹¹  R. Judah said: Any grafting¹²  which takes no root within three days will never take root. R. Jose and R. Simeon stated: [Within] two weeks.¹³  And, [in reference to this.] R. Nahman stated in the name of Rabbah b. Abbuha that according to him who stated, 'thirty days', thirty and thirty are required;' according to him who stated 'three days', three and thirty are required;¹⁴  and according to him who stated 'two weeks', two weeks and thirty days are required.¹⁴

'And Samuel stated: In respect of protracted labour and forfeiture'. 'Protracted labour'? — As we learned: How long does the period of protracted labour¹⁵  continue? R. Meir said: Forty or fifty days.¹⁶  R. Judah said: Her [ninth] month is sufficient.¹⁷  R. Jose and R. Simeon said: Protracted labour cannot extend beyond two weeks.¹⁸  'Forfeiture'? As we have learned: If one causes his vine to overhang¹⁹  above the crops of his neighbour, behold he causes thereby their forfeiture,²⁰  and he is liable to make compensation; so R. Meir. R. Jose and R. Simeon said:

1. Which attributes to R. Jose the opinion that the hermaphrodite bestows upon his wife the right of eating terumah.
2. Tosef. Bik. II. Since his sex is a matter of doubt he cannot obviously bestow the right (v. p. 558, n. 12) upon his wife.
3. V. p. 558. n. 12.
4. In his statement in the Baraitha where he alone appears as the author. In the Mishnah both R. Jose and R. Simeon appear as the authors.
5. Which he first expressed in our Mishnah.
6. If that opinion is more rigid. (Cf. supra 41a Meg. 18b). Here too R. Jose's opinion in the Baraitha is more restrictive than his opinion in our Mishnah and should therefore be taken into consideration!
7. That an individual opinion is to be taken into consideration.
8. In our Mishnah (cf. Rashi a.l.).
9. The sinking of a branch under the ground while one end of it remains attached to the tree and the other end is made to protrude from the ground so that in due course it may develop into an independent tree.
10. Cf. Lev. XXV, 4ff.
11. A tree does not take root according to this view, before thirty days from the day of its planting have elapsed, and by that time the Sabbatical Year has already begun where all such agricultural activities are forbidden.
12. And similarly any planting or sinking.
13. Sheb. II, 6.
14. Since the last thirty days of the eve of the Sabbatical Year are regarded as part of the next Sabbatical Year (v. M.K. 3b). the plant, in order that it may be permitted, must have taken root prior to these last thirty days.
15. During this period a woman is not subject to the restrictions of a zabah (v. Glos.), if the flow occurred during the eleven days that intervene between her menstrual periods, even if the discharge continued for three consecutive days. Such a continuous discharge at any other time, when it cannot be attributed to labour, subjects a woman to the uncleanness of a zabah. As in this case, however, the discharge may be regarded as that attendant on labour, the woman must observe only the days prescribed for one after childbirth (cf. Lev. XII, 2ff) and not those prescribed for a zabah (cf. ibid. XV, 25ff). V. Nid. 36b.
16. Prior to the birth of the child.
17. Should the flow begin prior to the ninth month and continue for three consecutive days she is regarded as a zabah.
18. Nid. 36b.
19. Lit., 'to cover'. 'to make a shadow'.
20. Cf. Deut. XXII, 9.

No man can impose a prohibition upon that which is not his.¹

The question was raised: What would Samuel²  have said with regard to the hermaphrodite?³  — Come and hear what Samuel said to R. Anan: The Baraitha cannot be maintained in the face of our Mishnah.⁴

What would Samuel have said in respect of grafting?³  — Come and hear what Samuel said to R. Anan: Teach in accordance with the view of him who stated 'three and thirty'.

What is the opinion of Rab⁵  in respect of protracted labour?⁶  — This is undecided.⁷

What is Rab's Opinion in respect of forfeiture?⁶  R. Joseph replied. Come and hear what R. Huna stated in the name of Rab: The halachah is not in agreement with R. Jose.

Said Abaye to him:⁸  What reason do you see for relying upon this statement?⁹  Rely rather on that which R. Adda made in the name of Rab: The halachah is in agreement with R. Jose! — Who is it [that is referred to by the phrase] 'At the school of Rab it was stated'?¹⁰  R. Huna [of course];¹¹  and R. Huna it was who stated that the halachah is not in agreement [with R. Jose].¹²

R. JUDAH STATED: A TUMTUM etc. R. Ammi remarked: What would R. Judah¹³  have done with a case like that of the tumtum of Bairi,¹⁴  who, after having been placed upon the operating table¹⁵  and operated upon, begat seven children!¹⁶  And R Judah?¹⁷  — He could tell you:¹⁸  An enquiry should be made as to the origin of his children.

It was taught: R. Jose son of. R. Judah stated that a tumtum must not participate in halizah, since it is possible that on being operated upon he may be found to be a congenital saris.¹⁹  Is everyone then,²⁰  who is operated upon a male! — It is this that he meant: It is possible that on being operated upon he may be found to be a female; and were he found to be a male, it is even then possible that he might be found to be a congenital saris. What is the practical difference between them?²¹  — Raba replied: The practical difference between them is the question of disqualification²²  where other brothers are in existence,²³  and that of halizah where no other brothers exist.²⁴

R. Samuel son of R. Judah said in the name of R. Abba, the brother of R. Judah b. Zabdi, in the name of Rab Judah in the name of Rab: In respect of the hermaphrodite the penalty of stoning is incurred through either of his organs.

An objection was raised: R. Eliezer stated, 'In respect of the hermaphrodite the penalty of stoning is incurred as in the case of a male. This, however, applies only to his male organ; but in respect of his female organ no penalty is incurred'!²⁵  — He²⁶  holds the same opinion as the following Tanna. For it was taught: R. Simai stated that in respect of the hermaphrodite the penalty of stoning is incurred through either of his organs. What is R. Simai's reason? — Raba replied: Bar Hamduri has explained it to me as follows: And thou shalt not lie with a male, as well as with womankind;²⁷  what male is it that is capable of two manners of lying?²⁸  Obviously²⁹  the hermaphrodite. And the Rabbis? — Though he is capable of two manners of lying it is nevertheless written in Scripture. With a male.³⁰  Whence, however, do the Rabbis³¹  derive the law concerning an ordinary male? — From And.³²  Whence³³  the prohibition in respect of unnatural intercourse with a woman? — From Woman.³⁴

R. Shezbi stated in the name of R. Hisda: It is not in all respects that R. Eliezer maintains that the hermaphrodite is a proper male. Since, were you to say so, [such an animal]³⁵  would be fit for consecration.³⁶  And whence is it derived that it³⁷  may not be consecrated? — From what the Rabbis taught: [A bird] that was covered,³⁸  set aside [for idolatrous purposes], or worshipped, that was the hire of a harlot³⁹  or the price of a dog,³⁹  a tumtum or hermaphrodite, causes the defilement of one's clothes⁴⁰  by [contact with one's] oesophagus.⁴¹  R. Eliezer said: [A bird that was] a tumtum or hermaphrodite does not impart the defilement of clothes through contact with one's oesophagus; for R. Eliezer maintained that wherever male and female were mentioned,⁴²  the tumtum and hermaphrodite are to be excluded; but [in the case of the sacrifice of a] bird, since in respect of it no mention was made of male or female, the tumtum and hermaphrodite are not to be excluded.⁴³

R. Nahman b. Isaac said: We also learned [a similar Baraitha]: R. Eliezer stated:

1. Kil. VII, 4; B.K. 100a.
2. Who only mentioned protracted labour and forfeiture.
3. Does he agree that here also the halachah is in agreement with R. Jose?
4. V. supra 83a and cf. supra p. 558. n. 2 and p. 559, n. 1.
5. Whose school reported in his name (supra 83a) on the hermaphrodite and grafting only.
6. V. supra p. 560. n. 10.
7. Teku [H], v.Glos.
8. R. Joseph.
9. That of R. Huna.
10. Supra 38a where only the hermaphrodite and grafting were mentioned.
11. V. Sanh. 17b. Wherever it is reported that 'At the school of Rab it was stated' the author of the statement was R. Huna. When, however, R. Huna himself reports 'At the school etc.' the author of the statement is R. Hamnuna. V. Rashi a.l. and cf. Tosaf. s.v. [H].
12. In respect of forfeiture, supra.
13. Who regards the tumtum as a saris even if after an operation he is found to be a male.
14. A mountain village north of Safed in Palestine, once a famous town.
15. Lit., 'his (sc. the operator's) chair'.
16. Which proves, contrary to the opinion of R. Judah, that such a tumtum is no saris.
17. How could he maintain his opinion in view of this incident?
18. [H], so MS.M.]
19. Tosef. Yeb. XI. Bek. 42b. A congenital saris (v. Glos.) is. of course, exempt from halizah.
20. Since R. Jose mentions only the possibility of being a saris and not that of being a female.
21. Between R. Jose and his father R. Judah. Whether such a tumtum is a doubtful or a certain saris he is, in either case, exempt from halizah.
22. From the levirate marriage.
23. Besides the tumtum. According to R. Judah, who regards him as definitely a saris, the widow, if the tumtum submitted to her halizah, is not thereby disqualified from subsequently marrying any of the other brothers, since the halizah of a saris is null and void. According to R. Jose, however, the widow is disqualified. since the tumtum might possibly be a male and his halizah might be valid.
24. According to R. Judah no halizah takes place; while according to R. Jose halizah must be performed owing to the possibility of his being a male.
25. Tosef. Yeb. X.
26. Rab.
27. Lev. XVIII, 22. [H] pl., lit., 'lyings'.
28. V. n. 7.
29. Lit., 'be saying'.
30. [H] sing. masc. ibid., which excludes copulation through his female organ.
31. Who employ the expression With a male (ibid.) in relation to the hermaphrodite.
32. Lev. XVIII, 22. [H], the superfluous particle of the defined accusative. Cur. edd. read, 'from woman'. For the reading adopted here, v. BaH, a.l.
33. According to both the Rabbis and R. Simai.
34. Ibid. cf. BaH.
35. An hermaphrodite.
36. As a sacrifice for the altar.
37. The hermaphrodite.
38. Used for bestiality.
39. Cf. Deut. XXIII. 19.
40. If the bird was offered up as a sacrifice in consequence of which its head is pinched off (cf. Lev. I, 15). As for the reasons stated, the bird is unfit for the altar, pinching (which is not the ritual mode of slaughter for unconsecrated birds) renders the bird nebelah (v. Glos.) which imparts uncleanness to one's clothes. V. infra n. 10.
41. I.e., through eating it. It is in this manner, and not by touch, that the nebelah of a clean bird (cf. Deut. XIV, 11) imparts uncleanness to a person.
42. In the Torah.
43. Bek. 42a, Zeb. 85b. Since in the case of sacrifices of beasts, male and female were mentioned, it is obvious that, according to R. Eliezer, no tumtum or hermaphrodite is suitable.