Wednesday, April 02, 2008

Daughter, not a Tumtum

The Mishna (Daf Yomi: Nazir 13a)states: If someone says: “I will be a nazir when I will have a son,” he becomes a nazir when he has a son. If he has a daughter, or a tumtum (no signs of gender), or an androgynous (signs of both genders), he does not become a nazir.

Tosfos explains that he does not regard a tumtum or an androgynous as his son.

The Maaseh Rokeach wonders what would be the halacha if he said, “I will be a nazir when I will have a daughter,” and he has a daughter, or a tumtum, or an androgynous. Do we say that he is not a nazir, for his condition was not met? Or perhaps, he will be a nazir, for when he said “a daughter,” he meant “when he will be built up,” and he is considered “built” with a son, tumtum or androgynous. Although the Gemora said that he does not mean, “when he will be built up,” perhaps that is only when he declared to be a nazir on the condition that he will have a son, but if he said, “when I will have a daughter,” perhaps they would be included, for it changed for the better (when his wife gives birth to a son)?

The Keren Orah writes that whether he says, “when I will have a son” or if he says, “when I will have a daughter,” a tumtum will not be included. Even if he says, “I will be a nazir when I have a son or a daughter,” and his wife gives birth to a tumtum or an androgynous, he will not be a nazir.

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