Sunday, July 22, 2007

Daf Yomi - Yevamos 80 - Highlights

The Mishna had stated: Rabbi Akiva said: I will explain. A saris-adam (one who became sterile after birth) submits to chalitzah, and they submit to chalitzah from his wife, because he had a time of fitness.

The Gemora asks: We have learned that Rabbi Akiva treats women prohibited by a negative precept the same as women with the penalty of kares (cohabitation with any of these women would render the children mamzeirim), and women who are subject to a penalty of kares are exempt from yibum and chalitzah (so why should the saris-adam be required to submit to chalitzah)?

Rabbi Ami answers: The Mishna is referring to a case where the brother had married a convert, and Rabbi Akiva holds like Rabbi Yosi that the congregation of converts is not regarded as the congregation (therefore there is no prohibition against marrying the petzua daka).

The Gemora asks: If so, why don’t we let him perform yibum?

The Gemora answers: Rabbi Akiva in fact allows him to perform yibum; he only mentioned chalitzah because of Rabbi Yehoshua.

This explanation is supported by the following words of our Mishna: Rabbi Yehoshua ben Beseira testified about ben Megusas, a saris-adam who was in Yerushalayim, and his wife was married by yibum, thus confirming the opinion of Rabbi Akiva.

Rabbah objects to this explanation of Rabbi Akiva’s ruling based on the following braisa: One, who is a petzua daka or a kerus shafchah, a saris-adam, or an old man, may either perform chalizah or yibum. What is the case? If these died childless and were survived by wives and brothers, and those brothers performed a ma'amar to the wives, or gave them letters of divorce, or performed a chalizah, their actions are legally valid. If they cohabited with them, the widows become their lawful wives. If the brothers died and they performed a ma'amar to their wives, or gave them divorce, or performed a chalizah, their actions are valid. If they cohabited with them, the widows become their lawful wives, but they may not retain them, because it is written [Devarim 23:2]: One with wounded or crushed testicles or with a severed member shall not enter into the Congregation of Hashem. We see that we are discussing a member of the congregation, and nevertheless, Rabbi Akiva (the author of this braisa; based on the fact that the braisa states if the petzua daka performs yibum, he acquires her) rules that there is a zikah-attachment for chalitzah and yibum.

The Gemora offers a different explanation: Rabbi Akiva is discussing a case where she fell to yibum when he was healthy, and then he became a saris-adam. There would still be a requirement for chalitzah in this case.

Abaye asked: Why doesn’t the prohibition of petzua daka come and negate the positive commandment of yibum? Didn’t we learn similarly in the following Mishna: Rabban Gamliel says: If two brothers were married to two sisters, one an adult woman and one a minor, and the husband of the adult sister died childless. (He may not perform yibum because he is Rabbinically married to her sister. There is a Biblical zikah-attachment.) If she refused, she refused (this is referred to as mi’un, which would nullify her marriage retroactively); and if not, she waits until she comes of age, and then the other is exempt on account of being the wife's sister. It emerges that the prohibition against marrying one’s wife’s sister can come and negate the positive commandment of yibum (even though the prohibition was not in existence at the time that she fell for yibum). Here too, why don’t we say that the prohibition of petzua daka should come and negate the positive commandment of yibum?

Rav Yosef offers a different explanation: This Tanna maintains that Rabbi Akiva holds that only a child born from a union with a woman prohibited by a negative precept because or relatedness is a mamzer, but if the woman is prohibited by a regular negative precept, the child will not be a mamzer (therefore, the yevamah will still have a zikah-attachment to the petzua daka). (79b)

The Gemora asks: What is a saris-chamah?

Rav Yitzchak bar Yosef said in the name of Rabbi Yochanan: One, who has not experienced a moment of life in a state of fitness.

The Gemora asks: How is this determined?

Abaye answers: By observing whether an arch is formed when he urinates.

The Gemora asks: What is the cause for this condition?

The Gemora answers: The child's mother baked at noon (the heat of the oven combined with the heat of the day obviously affected the generative organs of the fetus) and drank strong beer while she was pregnant with him.

The Gemora asks: Let us be concerned that he became healthy in the interim?

The Gemora answers: Since we have determined that he was born afflicted, and he is presently afflicted, there is no reason to assume that he was healthy in between. (79b – 80a)

The Mishna had stated: Rabbi Eliezer said: Not so, but rather a saris-chamah submits to chalitzah, and they submit to chalitzah from his wife, because he has a cure.

The Gemora asks a contradiction from the following Mishna in Niddah (47b): If a man dies childless and leaves a brother who at the age of twenty did not produce two pubic hairs, they (the relatives of the widow who wish to exempt her from chalizah and yibum) must bring evidence that he is in fact twenty years of age and that he is a saris (by a display of the required symptoms). If that happens, he neither submits to chalizah nor performs yibum. If a man dies childless and leaves a wife who at the age of twenty did not produce two pubic hairs, they must bring evidence that she is in fact twenty years of age and that she is an aylonis. If that happens, she does not require chalizah or yibum; these are the words of Beis Hillel. Beis Shamai maintains that a saris and an aylonis is established at the age of eighteen. Rabbi Eliezer said. In the case of the male, the halacha is in accordance with Beis Hillel and in the case of the female, the halacha is in accordance with Beis Shamai because a woman matures earlier than a man. (It emerges that Rabbi Eliezer holds that a saris-chamah does not perform yibum or chalitzah.)

The Gemora answers: Rabbi Eliezer retracted his position stated in the Mishna in Niddah, for we learned in a braisa that states the following: Rabbi Eliezer said: A saris-chamah submits to chalitzah, and they submit to chalitzah from his wife, because he has a cure in Alexandria of Egypt.

Alternatively, the Gemora answers: Rabbi Eliezer in the Mishna in Niddah was only discussing at what age does he or she become an adult in respect to being liable for punishment (he was not getting involved with the halachos of chalitzah or yibum). (80a)

The Gemora states: If one ate cheilev when he was between the age of twelve and eighteen, and he later developed the symptoms of a saris, and afterwards he produced two pubic hairs; Rav says: He is regarded as a saris retroactively at twelve years old (he is therefore liable to bring a korban chatas). Shmuel said: He is regarded as a minor at that time.

Rav Yosef asked on Rav’s opinion: According to Rabbi Meir (who exempts the seducer of a minor from the payment of the fine), an aylonis should be entitled to a fine (because, since it was later established that she was sterile, she should be regarded as an adult retroactively)?

Abaye answered: She passes from her minor status directly into becoming a bogeress (generally, a girl is a minor until she produces two hairs; at that time, she becomes a na’arah for six months; she then achieves the final status of adulthood, called bagrus; the aylonis skips the na’arus stage and goes directly into bagrus).

Rav Yosef said to him: Indeed, you are correct, but those fine statements should be said over in my name. It was taught in the following brasia like you: A saris is not judged as a ben sorer umoreh (a rebellious son) because a prerequisite to be judged as a ben sorer umoreh is having pubic hair; and an aylonis is not judged as a betrothed na’arah (who will be subject to stoning if she commits adultery, unlike a married woman who is judged with strangulation) because she passes from her minor status directly into becoming a bogeress. (80a)

Rabbi Avahu said: The identifying marks of a saris, aylonis, or an eight-month child (born in the eighth month of conception. who, as a rule, is not viable) are not decided upon until they have these marks at the age of twenty.

The Gemora asks: Can an eight-month child in fact survive? Did we not learn the following braisa: An eight-month child is regarded as a stone, and he may not be moved on Shabbos (classified as muktzah). His mother may lean over and nurse him because of the danger involved (the child might otherwise die of starvation before his time, and the mother might contract serious illness through the accumulation of superfluous milk in her breasts).

The Gemora answers: We are discussing a case where the identifying marks that he will survive have developed, for we learned in the following braisa: Who is an eight-month child? Any child whose months of conception were not completed. Rebbe says: A child whose hair and nails were not developed would indicate that he is unviable. The Gemora infers from Rebbe that if the hair and nails of the eight-month child were developed, we would say that he is in fact a seven-month baby (who is viable), but delayed inside his mother’s womb. (Rabbi Avahu, referring to such a case, teaches that, even according to Rebbe, no definite decision can be arrived at before the child has attained the age of twenty.)

The Gemora asks: Rava Tosfaah ruled regarding the following case: There was a woman whose husband went overseas and remained there for twelve months. She then gave birth to a child and he ruled that the child is legitimate. Was this ruling issued according to Rebbe, who maintains that a child can delay inside the mother’s womb (why would he rule according to the minority opinion)?

The Gemora answers: He ruled in accordance with Rebbe since Rabban Shimon ben Gamliel agrees with Rebbe, and it is therefore regarded as the majority opinion. It was taught in a braisa: Rabban Shimon ben Gamliel said: A child that lives for thirty days (even a known eight-month baby) is definitely not a non-viable child. (80a – 80b)

The Rabbis taught the following braisa: Who is saris-chamah? Any person who is twenty years of age and has not produced two pubic hairs. Even if he produced them afterwards, he is deemed to be a saris in all respects. The following are his characteristics: He has no beard, his hair on his head is soft and his skin is smooth. Rabban Shimon ben Gamliel said in the name of Rabbi Yehudah ben Yair: Any person whose urine produces no froth. Some say: He who urinates without forming an arch. Others say: He whose semen is watery. Some say: He whose urine does not putrefy (when left in a vessel). Others say: He whose body does not steam after bathing in the winter season. Rabbi Shimon ben Elozar said: He whose voice is thin so that one cannot distinguish whether it is that of a man or of a woman.

The braisa continues: Who is an aylonis? Any woman who is twenty years of age and has not produced two pubic hairs. Even if she produces them afterwards, she is deemed to be an aylonis in all respects. The following are her characteristics: She has no breasts and suffers pain during cohabitation. Rabban Shimon ben Gamliel said: One whose lower abdomen does not protrude over her genital area like other women. Rabbi Shimon ben Elozar said: One whose voice is deep so that one cannot distinguish whether it is that of a man or of a woman. (80b)

The Gemora states: Rav Huna said: One is not classified as a saris until he has all of the identifying marks. Rabbi Yochanan said: He is a saris even with only one of the identifying marks.

The Gemora explains this dispute: If he has two pubic hairs, everyone agrees that he will not be classified as a saris until he has all of the identifying marks. The argument is only when he does not produce the two pubic hairs. (80b)

[END]

1 comments:

M.S.S. said...

The Gemora asks: What is a saris-chamah?
Rav Yitzchak bar Yosef said in the name of Rabbi Yochanan: One, who has not experienced a moment of life in a state of fitness.



This comes rather directly from the Mishnah. I would have thought that since the criteria is “not experienced a moment of fitness”, that the determining moment in time would be 9 years and 1 day rather than birth. In other words, if a child below the age of 9 (but after birth) was injured, I would think that that child should be considered a saris-chamah rather than a saris-adam, since he never had a moment of fitness (fitness for bi’ah begins at 9). Why is this not the case?



That notwithstanding, we see that for all of the other issues relating to yibum, we go after the status at the moment of the husband’s death (whether or not there were brothers, what their status is, etc…). If a person is classified as a “saris” at the moment of his brother’s death, why would it matter whether it was caused after birth or congenital? The fact that he has that status at the time of his brother’s death should be the only factor.