RETROACTIVELY NOT MARRIED AND THE CONSEQUENCES - Yevamos 90 - Daf Yomi

Rav Chisda attempts to bring a proof that Beis Din has the authority to make a condition that will uproot something from the Torah. He cites the following braisa: If a husband annulled his letter of divorce (that was sent to his wife in the hands of an agent), it is annulled (even though he nullified it in front of a Beis Din in the absence of his wife or the agent); these are the words of Rebbe. Rabbi Shimon ben Gamliel said: He may neither annul it nor add a single condition to it, since, otherwise, of what avail is the authority of the Beis Din (since Rabban Gamliel the Elder ordained that such an annulment must not be made, since the woman in her ignorance of it might marry again and thus unconsciously give birth to illegitimate children). Now, even though, the letter of divorce may be annulled in accordance with Biblical law, we allow a married woman, owing to the authority of Beis Din, to marry anyone in the world.

Rabbah rejects this proof and states: Anyone who betroths a woman does so in implicit compliance with the ordinances of the Rabbis, and the Rabbis have in this case retroactively revoked the original betrothal. (They accomplished this by transforming retroactively the money of the betrothal given to the woman at her first marriage into an ordinary gift. Since the hefker of money comes within the authority of Beis Din, they are thus fully empowered to cancel the original betrothal, and the divorcee assumes, in consequence, the status of an unmarried woman who is permitted to marry any stranger.)

Ravina said to Rav Ashi: This is a satisfactory explanation where betrothal was effected by means of money; what, however, can be said in a case where betrothal was effected by cohabitation?

Rav Ashi replied: The Rabbis have assigned to such cohabitation the character of a promiscuous cohabitation. (From the moment a divorce is annulled in such a manner, the cohabitation, it was ordained, must assume retroactively the character of a promiscuous cohabitation, and since her original betrothal is thus invalidated, the woman resumes the status of the unmarried and is free to marry whomsoever she desires.)

As I was saying the Daf, I was asked the following question: If the Rabbis revoked the marriage retroactively, would she be permitted to marry a Kohen?

Since we are presently located in Marshall, Indiana, we do not have all the necessary seforim to discuss this in depth, but here is a brief synopsis of the topic matter.

Tosfos in Gittin (33b) goes to such an extent as to say that she was not considered a married woman, and if someone had cohabited with her during the time that she was "married," he would not be liable for cohabiting with a married woman, since the Rabbis revoked her marriage retroactively.

The Ramban in Kesuvos (3b) writes that there would be a Rabbinical prohibition retroactively, and she would be regarded as a divorcee, and hence, she would be forbidden to a Kohen.

Some say that she is forbidden to a Kohen because it "smells" like a get.

Rabbi Akiva Eiger discusses the following case: If she was a daughter of a Yisroel who married a Kohen, and therefore ate terumah during her "marriage," would it be regarded retroactively as if she ate terumah as a zar?

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EATING MEAT ONLY ON SHABBOS - Yevamos 90 - Daf Yomi

The Mekubalim explain the custom of some Chassidim as to why they would not eat meat during the week. Our Gemora said that when the Kohanim eat the meat from a sacrificial offering, the owner receives atonement. There are wicked people who after their death. Their soul enters into an animal as a gilgul. When a person consumes this animal, the soul of the wicked person intermingles with the soul of the person who ate the animal. When he sleeps at night and the soul ascends to the Heaven, the two souls separate. The soul belonging to the wicked person remains in Heaven and receives atonement. This is what is meant that the owner receives atonement. This process could only be accomplished together with the sanctity of Shabbos. This also explains the opinion of Beis Shamai. When they saw an animal that had a spark of sanctity contained within it, they would save that animal for Shabbos.

Sefer Chemdas Yamim

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INVITE KOHANIM TO PARTAKE IN PURIM FEAST - Yevamos 90 - Daf Yomi

It is brought in the name of the Arizal that one should invite Kohanim to partake in the Purim feast. The explanation is based on the Tikunei Zohar which states that Purim is similar to Yom Kippur. Just as the day of Yom Kippur provides atonement without eating and drinking, Purim provides atonement only through eating and drinking. Kohanim should be invited to partake in the Purim feast because the Gemora states that through the Kohanim’s eating, the owners will receive atonement.

Sefer Shevet Mi’Yehudah

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Daf Yomi - Yevamos 90 - highlights

REPAYMENT WITH CHULLIN TAMEI

Rav Chisda attempts again to bring a proof that Beis Din has the authority to make a condition that will uproot something from the Torah. He cites the following braisa: If a non-Kohen inadvertently ate terumah which was tamei, he must repay the Kohen with chullin (unconsecrated) produce that is tahor. (That which he compensates the Kohen with replaces the terumah and acquires terumah sanctity; this is why he pays him with produce that is tahor.) If he paid the Kohen with chullin that is tamei, Sumchos says in the name of Rabbi Meir: If he used tamei produce inadvertently, the repayment is valid (this tamei produce now becomes terumah, and he has no further obligation). If he used tamei produce intentionally, the repayment is invalid (the Rabbis penalized him; the tamei produce is returned to him and he must repay the Kohen with tahor produce). The Chachamim say: Whether he did so inadvertently or willingly, the repayment is valid, and he must repay again with tahor produce (this second repayment does not acquire terumah sanctity).

The Gemora asks on Rabbi Meir: Rabbi Meir ruled that if a non-Kohen inadvertently ate terumah which was tamei, and he inadvertently paid the Kohen with chullin that is tamei, he is penalized, and the repayment is invalid. Why should that be the case? On the contrary, let him be blessed for doing such a noble thing! He ate something that was unfit for the Kohen to eat while he was tamei (for a Kohen is always forbidden from eating terumah tamei), and he is repaying him with something (that he thinks) is fit for the Kohen to eat while he is tamei (in truth, the Kohen will not be able to eat this because the tamei chullin produce becomes terumah tamei).

Rava answers: It is as if the braisa was missing some words, and this is what the braisa is teaching us: If a non-Kohen inadvertently ate terumah which was tamei, he repays the Kohen with anything (even with chullin produce that is tamei). If he ate terumah which was tahor, he must repay the Kohen with chullin (unconsecrated) produce that is tahor. If he paid the Kohen with chullin that is tamei, Sumchos says in the name of Rabbi Meir: If he used tamei produce inadvertently, the repayment is valid (this tamei produce now becomes terumah, and he has no further obligation). If he used tamei produce intentionally, the repayment is invalid (the Rabbis penalized him; the tamei produce is returned to him and he must repay the Kohen with tahor produce). The Chachamim say: Whether he did so inadvertently or willingly, the repayment is valid, and he must repay again with tahor produce (this second repayment does not acquire terumah sanctity).

Rav Chisda presents his proof: In the case where he repaid the Kohen with tamei chullin produce, this compensation is Biblically valid (since we previously learned that tamei produce may be sanctified as terumah), and if the Kohen would betroth a wife using this produce, the kiddushin would take effect. And yet, according to Rabbi Meir, the Rabbis declared that the repayment is invalid, and this married woman (Biblically) is now permitted to marry anyone else. It is apparent that Beis Din has the authority to make a condition that will uproot something from the Torah.

Rabbah objects to this proof: Rabbi Meir did not mean that the repayment is invalid and that it must be returned; he meant that he must repay again with chullin which is tahor. (The first payment, however, still belongs to the Kohen, and consequently, the woman with whom he betrothed with this produce will remain a married woman.)

The Gemora asks: If so, Rabbi Meir and the Chachamim are ruling precisely the same?

Rav Acha the son of Rabbi Ikka answers: They are only arguing in a case when he repaid inadvertently with tamei chullin. (90a)

KOHEN THROWING TAMEI BLOOD

Rav Chisda attempts to bring another proof that Beis Din has the authority to make a condition that will uproot something from the Torah. He cites the following braisa: If the blood of a sacrifice became tamei and a Kohen nonetheless threw the blood against the mizbeiach (Altar), the halacha is as follows: If he did so inadvertently, the offering is accepted, but if he did so intentionally, the offering is not accepted.

In the case when he threw the tamei blood deliberately, the offering is accepted Biblically, for we learned in the following braisa: The tzitz effects acceptance (Regarding the tzitz it is said: It shall be on Aharon’s forehead, so that Aharon shall bear a sin of the sacred offerings. This teaches that if the service of an offering is done in a prohibited fashion, the tzitz will atone for the sin and the sacrifice is then acceptable. The sin referred to here is the sin of tumah.) for the blood, meat or sacrificial parts that became tamei. This law applies whether it was done inadvertently or intentionally, through a mishap or willingly, and whether the offering was offered by an individual or by a community. And yet, the Rabbis declared that when he threw the blood intentionally, the offering is not accepted, which will result in the fact that when he brings another offering in its place, he is bringing an unconsecrated animal into the Courtyard for a sacrifice (which is Biblically forbidden). It is apparent that Beis Din has the authority to make a condition that will uproot something from the Torah.

Rabbi Yosi bar Chanina rejects this proof: When the Rabbis declared that the offering is not accepted, they did not mean that the offering is not accepted, and he will be obligated to bring another in its stead; rather, they meant that the meat of the sacrifice may not be eaten, but the owner has achieved atonement with it.

Rav Chisda responds: But the bottom line is that the Rabbis have uprooted the obligation of eating the meat. It is written [Shmos 29:33]: And they shall eat them, those who gain atonement through them. This verse teaches that the Kohanim eat the offering and then the owner receives atonement. It still emerges that Beis Din has the authority to make a condition that will uproot something from the Torah.

Rabbi Yosi bar Chanina rejects this as well: He says that a Rabbinical decree which involves sitting and not acting (as is the case with the prohibition against eating the sacrificial meat) is different than decreeing that an active transgression of a Biblical law can be performed (such as Rav Chisda’s ruling in the case of turning consecrated terumah into unconsecrated produce). (90a)

OTHER CASES OF
SITTING AND NOT ACTING

Rav Chisda, (upon hearing the last reply) said to Rabbah: It was my intention to raise objections against your view (that Beis Din does not have the authority to make a condition that will uproot something from the Torah) from the Rabbinical decrees regarding the uncircumcised (one who converted on Erev Pesach, and who, by Rabbinic law, is forbidden to participate in the korban pesach, though Biblically it is his duty to bring the korban pesach as an Israelite), sprinkling (Rabbinically, it is forbidden to sprinkle the purification waters on one who is tamei on Shabbos, though Biblically it would be permitted. Should the Sabbath on which such sprinkling is due happen to be ErevPesach, the person affected would, owing to the Rabbinical prohibition, remain tamei and would, in consequence, be deprived of bringing the korban pesach, which is a Biblical obligation.) the knife of circumcision (which is forbidden to carry on Shabbos in Rabbinically prohibited domains even though this will result in the child not being circumcised on the eighth day, a Biblical commandment), the linen garment with tzitzis (there is a Rabbinic prohibition against inserting fringes of wool in a linen garment, and this prohibition sometimes results in the abrogation of the Biblical commandment of tzitzis), the lambs of Shavuos (if Shavuos fell out on Shabbos, and these lambs were not offered for the purpose for which they were designated, the sacrificial blood may not, in accordance with a Rabbinical prohibition, be sprinkled upon the altar, though such sprinkling is Biblically permitted), the shofar (if Rosh Hashanah falls out on Shabbos, the Biblical commandment of sounding the shofar is abrogated by the Rabbis for fear it might be carried from one domain into another), and the lulav (the branches of palm trees which are taken during Sukkos; This Biblical commandment is abrogated on Shabbos for the same reason as in the case of the shofar). Now, however, that you taught us that abstention from the performance of an act is not regarded as uprooting a Biblical law, I have nothing to say since all these are also cases of abstention. (90b)

OBEYING A PROPHET

Rav Chisda cites proof that Beis Din has the authority to make a condition that will uproot something from the Torah even if it involves an active transgression of a Biblical law. He cites the following braisa: It is written [Devarim 18:15]: To him you shall listen. Even if a prophet instructs you to transgress one of the commandments in the Torah, such as Eliyahu at Mount Carmel (where he offered a sacrifice on an improvised altar despite the prohibition against offering sacrifices outside the Temple), each case according to the needs of the moment, you must obey him.

Rabbah rejects this proof: There it is different because it says explicitly to listen to him.

Rav Chisda asks: Let us learn from there that the sages can do the same thing?

Rabbah answers: Safeguarding a measure is different. (Eliyahu was compelled to act in that manner to prevent widespread idol worship; the Rabbis cannot issue a decree against a Biblical law only as a preventive measure.) (90b)

ANNULLING A DIVORCE

Rav Chisda attempts to bring a proof that Beis Din has the authority to make a condition that will uproot something from the Torah. He cites the following braisa: If a husband annulled his letter of divorce (that was sent to his wife in the hands of an agent), it is annulled (even though he nullified it in front of a Beis Din in the absence of his wife or the agent); these are the words of Rebbe. Rabbi Shimon ben Gamliel said: He may neither annul it nor add a single condition to it, since, otherwise, of what avail is the authority of the Beis Din (since Rabban Gamliel the Elder ordained that such an annulment must not be made, since the woman in her ignorance of it might marry again and thus unconsciously give birth to illegitimate children). Now, even though, the letter of divorce may be annulled in accordance with Biblical law, we allow a married woman, owing to the authority of Beis Din, to marry anyone in the world.

Rabbah rejects this proof and states: Anyone who betroths a woman does so in implicit compliance with the ordinances of the Rabbis, and the Rabbis have in this case retroactively revoked the original betrothal. (They accomplished this by transforming retroactively the money of the betrothal given to the woman at her first marriage into an ordinary gift. Since the hefker of money comes within the authority of Beis Din, they are thus fully empowered to cancel the original betrothal, and the divorcee assumes, in consequence, the status of an unmarried woman who is permitted to marry any stranger.)

Ravina said to Rav Ashi: This is a satisfactory explanation where betrothal was effected by means of money; what, however, can be said in a case where betrothal was effected by cohabitation?

Rav Ashi replied: The Rabbis have assigned to such cohabitation the character of a promiscuous cohabitation. (From the moment a divorce is annulled in such a manner, the cohabitation, it was ordained, must assume retroactively the character of a promiscuous cohabitation, and since her original betrothal is thus invalidated, the woman resumes the status of the unmarried and is free to marry whomsoever she desires.) (90b)

BEIS DIN ADMINISTERING PUNISHMENTS

Rav Chisda attempts to bring a proof that Beis Din has the authority to make a condition that will uproot something from the Torah. He cites the following braisa: Rabbi Elozar ben Yaakov said: I heard from my teachers that even without any Biblical authority for their rulings, Beis Din may administer lashes and death penalties. They may not be done for the sake of transgressing the words of the Torah, but in order to build a fence for the Torah. And it once happened that a man rode on horseback on Shabbos in the days of the Greeks, and he was brought before Beis Din and he was stoned. They didn’t do this because he deserved this penalty, but rather, it was because the times demanded it. And another incident occurred with a man who cohabited with his wife under a fig tree, and he was brought before Beis Din and received lashes. They didn’t do this because he deserved such a penalty, but rather, it was because the times demanded it.

Rabbah responded: Safeguarding a measure is different. (These incidents occurred in times of religious laxity when rigid measures were necessary.) (90b)

[END]

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KESUVAH OBLIGATION - EXPLANATION OF TOSFOS - Yevamos 89 - Daf Yomi

As per your request, here is an explanation of tosfos, 89a s.v. Mai Tayma.

The Gemora states: The reason that the Rabbis instituted a kesuvah (an obligation for the husband or his estate to pay the wife a certain amount of money in case he divorces her or dies) is in order for it to be not so light in his eyes to divorce her.

Tosfos asks: From this Gemora, it seems apparent that a kesuvah obligation is merely Rabbinic in nature; yet it is written in the kesuvah explicitly that one is obligated Biblically to present his wife with two hundred silver zuzim, according to the law of Moshe and Israel.

Tosfos answers that our Gemora is referring to a kesuvah given to a widow, where the obligation is only a Rabbinic one in order that the husband should not easily divorce her.

Tosfos explains our Gemora: Just as the Rabbis enacted that there is a kesuvah obligation to a widow for the aforementioned reason, so too, the Rabbis penalized a virgin, where the kesuvah obligation is a Biblical one, that if she went and married another man based on the testimony of one witness, and the husband reappeared, she should not receive her kesuvah in order for the husband to divorce her easily.

Many Rishonim disagree with Tosfos and maintain that the kesuvah obligation is merely Rabbinic even for a virgin.

The Rosh explains: The phrase “according to the law of Moshe and Israel” which is written in the kesuvah does not mean that there is a Biblical obligation; it is merely stipulating the type of silver that the husband is required to give to his wife.

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Daf Yomi - Yevamos 89 - Highlights

THE KESUVAH OBLIGATION

The Mishna had stated: If a woman's husband went overseas, and they came (one witness) and said to her, “Your husband died,” and she married, and afterwards her husband returned, she must leave this one and this one and she does not receive her kesuvah from either one of them.

The Gemora explains: The reason that the Rabbis instituted a kesuvah (an obligation for the husband or his estate to pay the wife a certain amount of money in case he divorces her or dies) is in order for it to be not so light in his eyes to divorce her; in this case (when the husband reappears), we want him to separate from her. This is why there is no kesuvah obligation. (89a)

THE CONDITIONS INCLUDED IN THE KESUVAH

The Mishna had stated: She does not receive compensation for the fruits that he consumed from her usufruct property, or sustenance, or depreciation (if the husband made use of her melog property until it was worn-out, he is not required to pay her its monetary value); not against this one and not against this one.

The Gemora explains: All these are conditions that are included in the kesuvah. If she does not receive the kesuvah, she does not receive the conditions either. (89a)

SHE MUST RETURN THE MONEY

The Mishna had stated: If she took any of these payments from this one or from this one, she must return it.

The Gemora asks: Isn’t this halacha obvious? If she is not entitled to these payments, of course she would be required to return them?

The Gemora answers: We might have thought that since she grabbed these monies, Beis Din will not compel her to return them; the Mishna teaches us that we take the money away from her.

SEPARATION OF IMPROPER PRODUCE AS TERUMAH

The Mishna had stated: And the child born from either of these men is a mamzer (the child from the first man is a mamzer Biblically and the child from the second one is a mamzer Rabbinically).

The Gemora cites a Mishna: One may not separate terumah from produce which is tamei for produce which is tahor (since it is not edible, the Kohen will be losing out). If he did so inadvertently, the terumah is valid. If he did so intentionally, (the Chachamim instituted) it has no validity.

The Gemora asks: What does the Mishna mean when it states that it has no validity?

The Gemora answers: Rav Chisda says: It has no validity at all; even the produce which was separated as terumah reverts to its previous status of tevel (untithed produce that one cannot eat until tithing has been performed). Rabbi Nosson the son of Rabbi Oshaya says that it has no validity in regards to rectifying the remainder of the produce; however, the produce that was used to separate the terumah is regarded as terumah.

The Gemora explains why Rav Chisda does not agree with Rabbi Nosson the son of Rabbi Oshaya, for if the produce that was used to separate the terumah is regarded as terumah, sometimes he will be negligent and not separate terumah again for the remainder.

The Gemora asks on Rav Chisda: Why is this case different from that which we learned in the following Mishna: If one separated terumah from cucumbers on other cucumbers, and they were found to be bitter (and not edible). Similarly, if one separated terumah from melons on other melons, and they were found to be spoiled, the terumah is valid, but he must separate terumah again. (We see that even if he separated terumah incorrectly, the terumah is still valid; why does Rav Chisda maintain that the terumah has no validity at all?)

The Gemora answers: The two cases are not comparable. The Mishna is discussing a case where he separated the terumah incorrectly, but inadvertently; hence, the terumah is valid. Rav Chisda is discussing a case where he intentionally transgressed and a forbidden act has been committed.

The Gemora asks from two cases where he acted unwittingly: In the first Mishna, when he unwittingly separated terumah which is tamei, the terumah is valid, but in the other Mishna (in the case of the spoiled cucumbers or melons), he must separate terumah again. What is the reason for this distinction?

The Gemora answers: In the case of the spoiled cucumbers, it is an erroneous act, which is almost a willful one since he should have tasted it first (to determine if they are in fact edible); however, in the case of the terumah which is tamei, there was no way of knowing that the produce was tamei.

The Gemora asks from two cases where he acted willfully: In the first Mishna, when he willfully separated terumah which is tamei, the terumah has no validity. However, contrast this with what we learned in the following Mishna: If a man separated terumah of a non-perforated plant-pot (which is not subject to terumah, since it has not grown directly from the ground) for the produce of a perforated pot (which is subject to terumah because a plant in a perforated pot is deemed to be growing from the ground since it derives its nourishment through the holes of the pot from the ground itself), the former becomes terumah, but he must separate terumah again from the remainder. (Why is the terumah in this case valid, while in the case of the produce which was tamei, it has no validity at all?)

The Gemora answers: In the case of produce grown in two different vessels (the produce designated as terumah grew in one kind of pot while the other produce grew in another kind of pot) a man would obey to separate terumah again; however, in the case of the tamei and the tahor which grew together, he might not obey (to give terumah again, were the portion he has set aside was allowed to retain the name of terumah. He would argue that, in view of the validity of his act, no further terumah should be separated. Hence it was ordained that his act is void and that the quantity he has set aside is not to be regarded as terumah).

The Gemora turns its attention to Rabbi Nosson the son of Rabbi Oshaya. He said that terumah which was separated from produce which is tamei has no validity in regards to rectifying the remainder of the produce; however, the produce that was used to separate the terumah is regarded as terumah.

The Gemora asks: What is the distinction between this case and that which we learned in the following Mishna: If a man separated terumah of a perforated plant-pot (which is subject to terumah) for the produce of a non-perforated pot, the terumah is valid, but the Kohanim cannot eat from it until terumah is separated again for the produce of the non-perforated pot. (Why does Rabbi Nosson rule that the terumah is regarded as terumah, whereas in this Mishna, the terumah is regarded as tevel?)

The Gemora answers: The tamei produce is considered terumah because Biblically, it is a valid terumah separation, for Rabbi Ilai said: one who separates terumah from inferior quality produce for a superior quality, his terumah is valid. Rabbi Ilai provides a Scriptural source for this. (89a – 89b)

BEIS DIN UPROOTING SOMETHING FROM THE TORAH

The Gemora returns to Rav Chisda’s opinion: Rabbah asked Rav Chisda: According to you that maintains that one who inadvertently separated terumah which was tamei for produce that was tahor has no validity at all, and even the produce which was separated as terumah reverts to its previous status of tevel; what is your reasoning? It is based on a Rabbinical decree that if the produce that was used to separate the terumah is regarded as terumah, sometimes he will be negligent and not separate terumah again for the remainder. Is it halachically possible for the produce to be terumah under Biblical law, and on account of our concern for negligence, the Rabbis removed it from its terumah status and returned it to its tevel state? Does Beis Din have the authority to make a condition that will uproot something from the Torah?

Rav Chisda answered Rabbah: And you do not hold that Beis Din has the authority to make a condition that will uproot something from the Torah? Did we not learn in our Mishna that the child born from either of these men is a mamzer? It is understandable that the child born from the second man is classified as a mamzer because she is legally married to the first man; but, why is the child born from the first man a mamzer? Isn’t the woman his legal wife, and the child should be regarded as a legitimate child? Nevertheless, the Rabbis decreed that this child is a mamzer, and he would be permitted to marry a mamzeres. This indicates that Beis Din has the authority to make a condition that will uproot something from the Torah.

Rabbah said to Rav Chisda: Shmuel said that this child is forbidden to marry a mamzeres. Ravin also said this in the name of Rabbi Yochanan. Why does the Mishna refer to him as a mamzer? It is only because he is prohibited to marry an ordinary Jewess. (89b)

BEIS DIN CAN DECLARE THAT SOMEONE’S PROPERTY IS OWNERLESS

Rav Chisda sent the following message to Rabbah in the hands of Rav Acha bar Rav Huna: Do you think that Beis Din does not have the authority to make a condition that will uproot something from the Torah? But we learned in the following braisa: When does a husband become entitled to inherit the estate of his wife who is a minor? (The braisa is discussing a case where they were only Rabbinically married; a minor girl’s father died, and her mother or brothers married her off. She can perform mi’un, a refusal, and leave the marriage until she becomes an adult. In this case, she dies before becoming an adult. The braisa is inquiring: At what age may it be definitely assumed that the minor is no longer likely to make a declaration of refusal and may, consequently be regarded as one's proper wife?) Beis Shamai say: When she becomes an adult. Beis Hillel say: After she enters the chupah with him (although she can still perform mi’un, we assume that after nisuin, she will not leave him). Rabbi Elozar says: From after she cohabits with him. According to each of the opinions, it is from that point and on that her husband is entitled to inherit her if she would die, and he may become tamei to her corpse (if he is a Kohen), and it is at that time that she is eligible to eat terumah because of him.

The Gemora explains Beis Shamai to mean that she became an adult and entered the chupah with him; entering chupah as a minor is not effective.

The Gemora explains Rabbi Elozar to mean that she became an adult and she cohabited with him.

Rav Chisda presents his proof: The braisa states that once we are not concerned for mi’un, the husband inherits her even though her father (his heirs) should inherit her from a Biblical standpoint (since she is still not Biblically married to her husband). Nevertheless, the Rabbis decreed that her husband inherits her. This is a proof that Beis Din has the authority to make a condition that will uproot something from the Torah.

Rabbah objects to this proof: The reason why the husband is the inheritor even though he is not Biblically her husband is not because Beis Din has the authority to make a condition that will uproot something from the Torah; rather, it is because Beis Din has a right to declare the person’s property ownerless. (The Rabbis have consequently full authority to transfer the property of the minor from her father's heirs to her husband, and such transfer cannot be regarded as uprooting a Biblical law.)

The Gemora provides two sources that Beis Din has authority to declare a person’s property ownerless, and in fact, it becomes ownerless. (89b)

[END]

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TESTIMONY OF A WOMAN - Yevamos 88 - Daf Yomi

The Gemora states that regarding testimony for a woman whose husband died overseas, we accept testimony from a witness who heard testimony from another witness, although we normally do not accept such testimony. Similarly, even the testimony of a person who is normally invalidated for testimony, such as a woman, a slave and the like, their testimony will be accepted to allow a woman to remarry.

The Reshash asks: Tthe Mishnah states that there is no liability of a korban shevuas haeidus, if one takes an oath that he does not know testimony regarding a woman. The question is, if regarding testimony on behalf of a woman, even a woman’s testimony is acceptable, then one should be liable a korban shevuas haeidus for testimony regarding a woman.

The Reshash answers that the testimony of woman is not considered a testimony. Even if she is a “kosher” witness, she is not considered to be “kosher” with regard to the laws of testimony, only that she can reveal what happened in a certain situation. This answer is corroborated by Rabi Akiva Eiger .

The Shav Shmattsa answers that what we believed the words of a woman is not because of testimony, but rather because we assume that her words are the facts. If so, regarding the liability of a korban shevuas haeidus, Rashi writes that we require that the person was fit to testify. So it follows that a woman and anyone else who is invalidated from testifying will not fall under the category of liability for a korban shevuas haeidus.

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Daf Yomi - Yevamos 87/88 - Highlights

MISHNA REGARDING A HUSBAND WHO WENT OVERSEAS

If a woman's husband went overseas, and they came (one witness) and said to her, “Your husband died,” and she married, and afterwards her husband returned, she must leave this one and this one (A woman who committed adultery is forbidden to her husband and the adulterer. This woman has the same halachos. Even though the Sages accepted the testimony of one witness regarding a woman for the sake of agunos, they ruled in this manner because they relied upon the woman not to marry until she had thoroughly investigated and clarified the matter. Since she did not clarify the matter and married, the Sages penalized her that she must leave both.); and she requires a bill of divorce from this one and from this one; and she does not receive her kesuvah, or fruits (The husband does not pay her for the fruits that he consumed from her usufruct property. Even though the husband's right to the fruits of his wife's melog property is a compensation for his obligation to ransom her if she is taken captive by non-Jews, and he is not required to ransom this wife who is prohibited to him, and it therefore would be proper that he pay her for what he consumed of the fruits of her melog property, nonetheless the Sages punished her and she cannot collect from him the fruits he consumed, just as she does not collect her kesuvah.), or sustenance, or depreciation (if the husband made use of her melog property until it was worn-out, he is not required to pay her its monetary value); not against this one and not against this one. And if she took any of these payments from this one or from this one, she must return it. And the child born from either of these men is a mamzer (the child from the first man is a mamzer Biblically and the child from the second one is a mamzer Rabbinically). And neither this one nor this one may render himself tamei for her (if she dies). And neither this one nor this one is entitled to an object she finds, or to her earnings, and they are not authorized to annul her vows. If she was the daughter of a Yisroel, she is disqualified from the Kehunah, and if she was the daughter of a Levi, she is disqualified from ma'aser, and if she was the daughter of a Kohen, she is disqualified from terumah. And the heirs of neither this one, nor of this one inherit her kesuvah. And if they died, the brother of this one and the brother of this one submit to chalitzah and do not marry by yibum. Rabbi Yosi says: Her first husband’s estate is responsible for her kesuvah. Rabbi Elozar says: The first husband is entitled to an object she finds and to her earnings, and he is authorized to annul her vows. Rabbi Shimon says: Cohabitation with her or her chalitzah to the brother of the first husband exempts her co-wife from chalitzah or yibum, and the child born from the first husband is not a mamzer.

The Mishna continues: If she married without permission (there were two witnesses that her husband died), she is permitted to return to him (since she was not expected to investigate and clarify the matter).

If she married with the consent of Beis Din (through the testimony of one witness), she must leave both men (if the husband returns), and she is exempt from an offering (since a person who sins in consequence of a ruling of Beis Din is exempt from a sin-offering). If she did not marry with the consent of Beis Din (there were two witnesses that her husband died), she must leave both men, and she is liable to bring a sin-offering. Such is the power of Beis Din that it exempts her from an offering.

If Beis Din ruled that she may be married, and she went and acted improperly (she cohabited with another man), she is liable to bring a sin-offering, for they permitted her only to be married. (87b)

THE VALIDITY OF ONE WITNESS

The Gemora analyzes the first case of the Mishna, which stated: If a woman's husband went overseas, and they came and said to her, “Your husband died,” and she married, and afterwards her husband returned, she must leave this one and this one. Since the Mishna states later: If she married without permission, she is permitted to return to him; the latter ruling must be referring to a case where Beis Din didn’t grant permission, but rather, there were two witnesses (for otherwise, why would she be permitted to return to her first husband?). This implies that the former ruling is referring to a case where Beis Din granted permission based on the testimony of one witness. It emerges from here that one witness is trusted to permit a woman to remarry.

The Gemora cites another Mishna to support this conclusion. The Mishna states: It became established throughout Israel that if a person testifies that someone else witnessed the death of a man overseas, we accept the testimony of the second witness to allow the wife to remarry. We also accept the testimony of a woman who acquired her testimony by the mouth of a second woman. We also trust a woman who acquired her testimony by the mouth of a slave or a maidservant. (Although the second person’s testimony is not biblically valid, the Chachamim were lenient so the woman should not remain an agunah, a woman who is left in limbo regarding her marital status. Furthermore, every Jewish marriage is contingent on rabbinical protocol, and the Chachamim reserved the right to invalidate a marriage where a person offers hearsay testimony that the woman’s husband died overseas.) It emerges from here that one witness is trusted to permit a woman to remarry. (87b)

ONE WITNESS REGARDING OTHER PROHIBITIONS

The Gemora cites another Mishna proving that one witness is believed even in regards to other Biblical prohibitions. The Mishna states: If one witness testifies that a certain person ate cheilev (forbidden fats) inadvertently, and thus is liable to bring a chatas (sin-offering). That person claims that he did not eat it at all. The halacha is that he is exempt from bringing a chatas.

The Gemora analyzes the Mishna. The reason why he is exempt from bringing the chatas is because he contradicted the witness and claimed that he did not eat the cheilev. If, however, he would have remained quiet, he would be liable to bring a chatas. It emerges from here that one witness is trusted even in regards to other Biblical prohibitions. (87b)



THE BIBLICAL SOURCE FOR ACCEPTING ONE WITNESS

The Gemora asks: How do we know from the Torah that one witness is believed in regards to Biblical prohibitions?

The Gemora answers: It was taught in the following braisa: It is written [Vayikra 4:23]: If his sin becomes known to him….he shall bring his chatas offering. The Torah teaches us that he must be aware of his sin, and not that others make him aware. One might think that even if he does not contradict the testimony, he should not be liable to bring the chatas; therefore the Torah states: If it becomes known to him, he is liable to bring the chatas in all cases.

The Gemora analyzes the braisa: What is the case that the braisa is discussing? If there are two witnesses, and he does not contradict them, why is the verse necessary (of course, he would be obligated to bring a chatas)? Obviously, the braisa is discussing a case where one witness testified, and he would be believed if he is not contradicted. We can learn from this braisa that one witness is believed even when it is relevant to Biblical prohibitions.

The Gemora asks: Perhaps he is liable to bring the chatas because he kept quiet, and this is a sign of admission (and the braisa would not be a proof that one witness is believed)?

The Gemora proves from the latter portion of the braisa that the reason he would be liable to bring the chatas is not because we believe one witness, but rather, it is because his silence is an admission of guilt. (87b - 88a)

The Gemora states that it is logical that one witness is believed. For the testimony regarding the husband who went overseas is similar to a case of a piece of fat that we are uncertain if it is cheilev (and it is forbidden), or if it is shuman (and it would be permitted), and one witness testified that it is shuman. Just as he is believed in that case, he should be believed in this case (that the husband died).

The Gemora objects to this comparison: Perhaps the one witness is believed only by the piece of fat, where a state of prohibition was not previously established. However, in the Mishna’s case, the state of prohibition of a married woman was already established, and the one witness will not be believed. Furthermore, there is a principle that two witnesses are required in all matters concerning ervah (forbidden marital relationships). (88a)

The Gemora offers another logical reasoning to believe one witness. For the testimony regarding the husband who went overseas is similar to the testimony of one witness permitting produce that had been previously established as tevel (untithed produce that one cannot eat until tithing has been performed), or permitting objects that had been previously established as hekdesh (consecrated items), or permitting an object that had been established to be subject to the prohibition of konamos (when one makes a vow not to derive pleasure from a certain object).
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The Gemora analyzes all three cases: What is the case of tevel? If the produce is his own (the witness’), perhaps the reason that the witness is believed is not because one witness is believed, but rather, it is because he has the capability of rectifying the prohibition through tithing the produce himself. Rather, it must be referring to a case where the tevel belongs to someone else. What does the one who offered this comparison hold? If he holds that separating terumah from his own produce for the sake of rectifying someone else’s produce does not require the willingness of the owner, what is the comparison? Perhaps the reason that the witness is believed is not because one witness is believed, but rather, it is because he has the capability of rectifying the prohibition through tithing the produce himself. And if he holds that separating terumah from his own produce for the sake of rectifying someone else’s produce requires the willingness of the owner, and the one witness testifies that the produce has in fact been tithed, how do we know that the witness would be believed in this situation?

What is the case of hekdesh? If the consecrated item is one that merely possesses monetary sanctity, perhaps the reason that the witness is believed is not because one witness is believed, but rather, it is because he has the capability of redeeming the object himself. And if the case we are discussing is dealing with a consecrated item that possesses physical sanctity (which cannot be redeemed), let us examine the case further. If the consecrated item is his own, perhaps the reason that the witness is believed is not because one witness is believed, but rather, it is because he has the capability of asking a sage to annul his vow, which would render the item unconsecrated. If the consecrated item belonged to someone else, and the witness testified that he knew that the owner asked a sage to annul his vow, how do we know that the witness would be believed in this situation?

The Gemora examines the case of konamos. If the one who offered this comparison holds that there is a halacha of me’ilah (the sin of deriving benefit from consecrated property) by konamos, and therefore these objects would obtain monetary sanctity, perhaps the reason that the witness is believed is not because one witness is believed, but rather, it is because he has the capability of redeeming the object himself. If he holds that there is no halacha of me’ilah by konamos, but merely an ordinary prohibition, let us examine the case further. If the item is his own, perhaps the reason that the witness is believed is not because one witness is believed, but rather, it is because he has the capability of asking a sage to annul his vow. If the item belonged to someone else, and the witness testified that he knew that the owner asked a sage to annul his vow, how do we know that the witness would be believed in this situation? (88a)

LENIENCY TO ALLOW A WOMAN TO REMARRY AND NOT TO REMAIN AN AGUNAH

(The Gemora did not find a source proving that one witness will be believed against an established prohibition.) Rabbi Zeira says: The reason why one witness is believed (that the husband died) is because of the severity with which we applied to her (the wife) at the end (when the husband returned), we are lenient with her at the beginning (and allow her to marry through the testimony of one witness).

The Gemora asks: Let us not treat her severely at the end (by not imposing penalties on her if the husband returns) and we would not be compelled to be lenient with her in the beginning?

The Gemora answers: Since we were concerned that the woman will remain an agunah (a woman that cannot get married because we do not have sufficient evidence that her husband died), the Rabbis treated her leniently, and accepted the testimony of one witness. (88a)

REMARRYING BASED UPON TWO WITNESSES

The Mishna had stated: If a woman's husband went overseas, and they came (one witness) and said to her, “Your husband died,” and she married, and afterwards her husband returned, she must leave this one and this one. Rav says that this is the halacha only if she married on the basis of the testimony of one witness. However, if she remarried on the basis of the testimony of two witnesses, she is not required to leave.

In Eretz Yisroel, they mocked at this ruling by saying: “The first husband has returned, and you say that she is not required to leave the second husband?”

The Gemora answers: Rav is discussing a case where we did not recognize the man who claims to be her first husband.

The Gemora asks: If we do not recognize him, then she should be permitted to stay with her second husband even if there was only one witness testifying that her husband died?

The Gemora answers: Rav is referring to a case where we do not recognize the man who claims to be her first husband, and there are two witnesses who testify and say the following: “We were with this man from the moment he left until now (and we are certain that he is her husband), and you do not recognize him because his appearance has changed.”

The Gemora proves from Yosef and his brothers that it is possible that a person’s appearance can change in such a manner that even his family will not recognize him.

The Gemora asks: But the bottom line in this case is that we have contradictory witnesses. We have two witnesses testifying that the husband died, and two witnesses testifying that the husband has returned. One who cohabits with this woman should be liable to bring an asham taluy (a korban that one is required to bring if he is uncertain if he mistakenly committed a transgression). Why then, do we allow the second husband to remain married to her?

Rav Sheishes answers: We are discussing a case where she is married to one of the witnesses who testified that the husband has died. (He is not required to bring an asham taluy since he does not suspect at all that he has committed any transgression.)

The Gemora asks: But, what about her? She herself is liable to bring an asham taluy.

The Gemora answers: We are discussing a case where she is certain that her husband died (and the man claiming to be her husband is a fraud).

The Gemora asks: If so, what is the novelty of Rav’s ruling? Even Rabbi Menachem the son of Rabbi Yosi said that a couple must separate when the legitimacy of their marriage is in question only if they married after both sets of witnesses testified; however, if they married on the basis of testimony from one set of witnesses and a conflicting set testified afterwards, they are not obligated to separate. For it was taught in the following braisa: If two witnesses testify that her husband died or that they got divorced, and another set of witnesses testify that the husband did not die or they did not get divorced, she should not get married. If she does remarry, she is not obligated to leave. Rabbi Menachem the son of Rabbi Yosi says: She is required to leave. Rabbi Menachem the son of Rabbi Yosi explains: When do I say that she is required to leave? Only if she remarried after the testimony of both sets of witnesses. However, if she remarried based on the supporting testimony from one set of witnesses, and afterwards, the opposing witnesses testified, she is not required to leave. (Accordingly, why did Rav need to repeat this ruling?)

The Gemora answers: Rav is referring to a case where she remarried after the testimony of both sets of witnesses, and Rav ruled that she is not required to leave in accordance with the Tanna Kamma, and to exclude the opinion of Rabbi Menachem the son of Rabbi Yosi.

There are others that say that the reason Rav ruled that she is not required to leave is because she married prior to the testimony from the opposing witnesses; however, if she remarried only after both sets of witnesses testified, she would be required to leave. This would be in accordance with the opinion of Rabbi Menachem the son of Rabbi Yosi. (88a – 88b)

Rava asks on Rav from the following braisa: How do we know that if a Kohen does not want to separate himself from tumah or from a forbidden woman that we physically force him until he obeys? It is written [Vayikra 21:8]: And you shall sanctify him. The Torah teaches us that it is incumbent upon Beis Din to force him to comply.

Rava examines the braisa: What is the case of the forbidden woman? If we are referring to a case where the Kohen married a woman based upon the testimony of witnesses who testified that her husband had died, and the Kohen was not one of the witnesses, and she did not claim that she is certain that her husband died, is it necessary to teach us that we force the Kohen to separate from the woman? Obviously not! Rather, the braisa must be referring to a case where the Kohen is one of the witnesses who testified that her husband died, and she is certain that her husband died, and nevertheless, the braisa rules that Beis Din forces the Kohen to separate from her. This would be inconsistent with Rav’s ruling that they are permitted to remain married.

The Gemora answers: We are stricter when we are dealing with a Kohen, whereas Rav was discussing a non-Kohen.

Alternatively, the Gemora answers that the braisa is not discussing a case where both sets of witnesses testified, and we obligate the couple to separate. The case is that the Kohen wishes to marry her based on the testimony of one set of witnesses. The Torah requires that we force him to refrain from marrying her until we determine that there are no opposing witnesses.

Alternatively, the Gemora answers that the braisa is discussing a case where both sets of witnesses testified, and only then do we require the couple to separate. This would be in accordance with the opinion of Rabbi Menachem the son of Rabbi Yosi. (88b)

[END]

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RULING ON HASHKAFA - Yevamos 86 - Daf Yomi

Tosfos discusses the penalty that Ezra established regarding the Levi’im and their ma’aser. In the middle of this discussion, Tosfos issues the following statement: We have ruled that Malachi is the same person as Ezra.

The Maharatz Chayus asks: How can Tosfos rule regarding this issue? The entire discussion of who Malachi was, is a historical fact, and the issue is one of Aggadata, and not halacha. It seems strange to issue a ruling on a historical fact.

(http://divreichaim.blogspot.com/2007/07/psak-on-hashkafa-and-formulating-torah.html) Divrei Chaim discusses this issue at depth. Can there be a ruling on hashkafic matters?

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Daf Yomi - Yevamos 84 - Highlights

The Mishna states: There are those women that are permitted to remain with their husbands, but if the husband dies childless, they are forbidden to their yavams. There are some that are permitted to their yavams, but they are prohibited to remain with their husbands. There are some that would be permitted to both, and there are some that are forbidden to both.

The Mishna explains: There are those women that are permitted to remain with their husbands, but if the husband dies childless, they are forbidden to their yavams: An ordinary Kohen who marries a widow, and he has a brother who is a Kohen Gadol (she is forbidden to him because a Kohen Gadol may not marry a widow); a Kohen, who is a chalal marries a legitimate woman, and he has a brother who is a legitimate Kohen (she is forbidden to him because she becomes a chalalah by cohabiting with a chalal, and a legitimate Kohen may not marry a chalalah); A Yisroel that marries the daughter of a Yisroel, and he has a brother who is a mamzer; a mamzer married a mamzeres, and he has a brother who is legitimate.

The Mishna explains the second category: There are some that are permitted to their yavams, but they are prohibited to remain with their husbands. A Kohen Gadol who betrothed a widow, and he has a brother who is an ordinary Kohen; a legitimate Kohen who married a chalalah, and he has a brother who is a chalal; a Yisroel who married a mamzeres, and he has a brother who is a mamzer; a mamzer who married the daughter of a Yisroel, and he has a brother who is a Yisroel.

The Mishna explains the last category: The following women are forbidden to both: A Kohen Gadol who married a widow, and he has a brother who is a Kohen Gadol, or an ordinary Kohen (she is forbidden to him because she becomes a chalalah through cohabitation with the Kohen Gadol); an ordinary legitimate Kohen who married a chalalah, and he has a legitimate brother; a Yisroel who married a mamzeres, and he has a brother who is legitimate; a mamzer who married the daughter of a Yisroel, and he has a brother who is a mamzer; these women are prohibited to their husbands and to their yavams.

All other women are permitted to their husbands and to their yavams.

The Mishna continues: There are secondary arayos that are only forbidden on account of a decree by the early Sages. If a woman is a secondary ervah to her husband, but not a secondary ervah to the yavam, she is prohibited to the husband and permitted to the yavam. If she is a secondary ervah to the yavam, but not a secondary ervah to the husband, she is prohibited to the yavam and permitted to the husband. If she is a secondary ervah to both of them, she is prohibited to both of them. She does not receive her kesuvah, or fruits (The husband does not pay her for the fruits that he consumed from her usufruct property. Even though the husband's right to the fruits of his wife's melog property is a compensation for his obligation to ransom her if she is taken captive by non-Jews, and he is not required to ransom this wife who is prohibited to him, and it therefore would be proper that he pay her for what he consumed of the fruits of her melog property, nonetheless the Sages punished her and she cannot collect from him the fruits he consumed, just as she does not collect her kesuvah.), or sustenance, or depreciation (if the husband made use of her melog property until it was worn-out, he is not required to pay her its monetary value), and the child is legitimate, and they compel him to divorce her.

The Mishna concludes: If a widow is married to a Kohen Gadol, a divorced woman or a chalutzah to an ordinary Kohen, a mamzeres or a nesinah to a Yisroel, the daughter of a Yisroel to a nesin or to a mamzer, they receive their kesuvah. (84a)

Rav Pappa asks: If the halacha is in accordance with the following ruling that Rav Dimi reported in the name of Rabbi Yochanan when he came from Bavel: If a second-generation Egyptian convert married a first-generation Egyptian convert, their son is regarded as a second-generation Egyptian, our Mishna should also have taught: If a second-generation Egyptian convert married two Egyptian women, one of the first, and the other of the second-generation, and he had sons from the first and from the second, if they (the sons) married in the proper manner (i.e., if the son of the second-generation Egyptian woman, who thus belongs to the third and is permitted to enter the congregation, married the daughter of an Israelite, while the other who belongs to the second generation married a second-generation Egyptian), the two wives are permitted to their husbands but forbidden to their yavams. And if they married in the reverse (forbidden) order (i.e., if the son of the second-generation Egyptian woman married a second-generation Egyptian, while the while the other who belongs to the second generation married the daughter of an Israelite), the wives are permitted to their yavams and forbidden to their husbands. The Mishna’s category of women that are permitted to both the husband and the yavam could be represented by an ordinary female convert who married one of the brothers. The Mishna’s category of women that are prohibited to both the husband and the yavam could be represented by an aylonis who married the brother who is a second-generation Egyptian convert.

The Gemora answers: The Tanna taught some cases and omitted others.

The Gemora asks: What else did he omit that he should have omitted this also?

The Gemora answers: He omitted the case of the petzua daka.

The Gemora asks: If this is all that can be pointed out, the case of the petzua daka cannot be regarded as an instance of an omission, since those that are subject to the penalty of negative precepts were already mentioned?

The Gemora answers: Were not several specific cases mentioned of those that are subject to the penalty of negative precepts? Surely it was stated: An ordinary Kohen who marries a widow and then again the Mishna stated: A Kohen, who is a chalal marries a legitimate woman?

The Gemora counters that this case (a chalal who marries a legitimate woman) was required for the specific purpose of informing us that the halacha is in agreement with Rav Yehudah’s ruling that he reported in the name of Rav, for Rav Yehudah said in the name of Rav: Women of legitimate status (daughters of Kohanim) were not forbidden to be married to chalalim. (The Torah’s prohibition against a Kohen marrying a chalalah is applicable only to the man, but the woman is permitted to marry a chalal.)
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The Gemora attempts to disprove again that the negative precept of the widow to the Kohan Gadol mentioned in the Mishna includes other negative precepts as well. Didn’t the Mishna state the case where a chalal married a legitimate woman and then again the Mishna stated: A Yisroel that marries the daughter of a Yisroel, and he has a brother who is a mamzer?

The Gemora counters that these two cases are necessary. The Tanna taught us first regarding a negative precept which is not applicable to all (the case of the chalal is applicable only to Kohanim) and then he taught us regarding a negative precept which is applicable to all.

The Gemora answers: Why then, did the Tanna have to state two cases dealing with a mamzer? The Mishna states first: A Yisroel that marries the daughter of a Yisroel, and he has a brother who is a mamzer, and then the Mishna stated: A mamzer married a mamzeres, and he has a brother who is legitimate.

The Gemora concludes: It has thus been proven that the Tanna taught some cases while others he omitted. This indeed proves it. (As a result, nothing can be proven regarding the Mishna’s omission of the cases involving the Egyptian converts.) (84b)

[END]

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NOT A FACTUAL DISPUTE - Yevamos 83 - Daf Yomi

The Gemora cites a Mishna which states that if one plants a tree within thirty days of Rosh Hashanah prior to a Shemitah year, the tree must be uprooted. Rabbi Yehuda maintains that a tree takes root within three days. Rabbi Yosi and Rabbi Shimon hold that a tree takes root within two weeks of its being planted.

The Chasam Sofer (Y”D 284) comment that this is not a factual dispute as to how many days it takes for a tree to take root for everyone holds that it takes root in three days or less and the facts can attest to this. The argument is regarding a case where for some reason the tree did not take root. After how long can it be stated with a certainty that the tree will not take root any longer.

Interestingly, the Chazon Ish (Shvi’is 17:28) explains exactly the opposite. He also comments that there is no factual dispute amongst the Tannaim and everyone agrees that a tree can only begin to take root within three days. The argument is if that little bit is considered taking root or is a much firmer attachment to the ground necessary.

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HOW SHOULD WE RULE? - Yevamos 83 - Daf Yomi

The Gemora cites a Mishna which states that if one plants a tree within thirty days of Rosh Hashanah prior to a Shemitah year, the tree must be uprooted. Rabbi Yehuda maintains that a tree takes root within three days. Rabbi Yosi and Rabbi Shimon hold that a tree takes root within two weeks of its being planted.

The Rambam and other poskim all rule in accordance with Rabbi Yosi and Rabbi Shimon. The Sfas Emes questions as to why the Rambam does not rule regarding lands outside of Eretz Yisroel in accordance with Rabbi Yehuda who holds that three days is sufficient. There is a principle that we rule outside of Eretz Yisroel in accordance with the viewpoint which is most lenient in Eretz Yisroel.

The Shagas Aryeh (14) and the Noda Beyehuda (kamma Y”D 88) answer that whenever the Gemora rules explicitly like the Tanna who is stringent, the principle of ruling in Chutz La’aretz in accordance with the lenient opinion does not apply.

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Daf Yomi - yevamos 83 - Highlights

(Rabbi Yochanan maintains that Rabbi Yosi and Rabbi Shimon hold that an androgynous is a definite male. Rish Lakish held that they maintain that he is possibly a male.)The Mishna had stated: An androgynous may marry a woman. This would indicate that he is a definite male and his marriage is a full-fledged one.
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The Gemora answers: Let us learn the Mishna to mean that if an androgynous marries, the marriage takes effect (to the extent that she will need a divorce to get married again, because an androgynous is a possible male).

The Gemora asks: But the Mishna says that the androgynous may marry outright?

Rish Lakish counters: And according to you, what does the next statement of the mean when it states the following: An androgynous may not be taken in marriage by a man? It obviously is referring to even after the fact; the androgynous may not remain married to the male. Just as the second statement refers to after the fact, so too, the first statement of the Mishna means after the fact.

The Gemora objects to this explanation: They said: No. The first statement of the Mishna means that the androgynous may marry a woman outright, and the second statement means that the androgynous may not be married to a male even after the fact. (This would be inconsistent with Rish Lakish’s viewpoint.)

The Gemora asks on Rabbi Yochanan: The Mishna concluded with the following ruling: Rabbi Eliezer says: One is liable to stoning on account of cohabiting with an androgynous, as with a male. This would indicate that the Tanna Kamma was uncertain as to the status of an androgynous.

The Gemora answers: Both the Tanna Kamma and Rabbi Eliezer maintain that an androgynous is certainly a male. The difference between the two opinions is whether a male will be liable to stoning for cohabiting with the androgynous in two places (through his anus or his female organ). The Tanna Kamma maintains that he will be liable for stoning from either of two places. Rabbi Eliezer holds that he will be liable for stoning only when he cohabits with the androgynous in the manner of a male (through his anus, for only then will it be classifies as homosexual relations). (82b)

Rav said: Rabbi Yosi’s ruling in the Mishna (that an androgynous entitles his wife to eat terumah) cannot be correct because Rabbi Yosi taught differently in the following braisa: Rabbi Yosi said: An androgynous is a being unto itself, and the Chachamim could not determine whether it is a male or a female.

The Gemora asks: On the contrary? Let Rav say that Rabbi Yosi’s ruling in the braisa is not correct because he taught differently in the Mishna?

The Gemora answers: By the fact that Rabbi Yosi deserted his partner Rabbi Shimon in the braisa, this would indicate that he retracted from his ruling of the Mishna.

Shmuel said: Rabbi Yosi’s ruling in the braisa cannot be correct because Rabbi Yosi taught differently in the Mishna.

The Gemora asks: On the contrary? Let Shmuel say that Rabbi Yosi’s ruling in the Mishna is not correct because he taught differently in the braisa, since we have heard that Shmuel is concerned for the individual opinion when it is a stricter one (even when it is opposed to a majority opinion)?

The Gemora answers: He is only concerned for an individual stricter opinion if a Mishna will not be uprooted because of it; here, where we would be compelled to uproot a Mishna, Shmuel is not concerned for the individual opinion. (82b – 83a)

They said in the Beis Medrash of Rav in the name of Rav: The halacha follows Rabbi Yosi with respect to an androgynous and with respect to grafting. Shmuel said: The halacha follows Rabbi Yosi with respect to a woman bleeding in labor and with respect to rendering unfit.

The Gemora explains: When Rav said that the halacha follows Rabbi Yosi with respect to an androgynous, he is referring to the halacha cited above (an androgynous entitles his wife to eat terumah).

When Rav said that the halacha follows Rabbi Yosi with respect to grafting, he was referring to the following Mishna: One is not permitted to plant a tree, nor bend a vine and insert it into the ground, nor graft during the year preceding Shemitah, less than thirty days before Rosh Hashanah (since it takes thirty days for all types of planting to take root). If one does plant a tree within thirty days of Rosh Hashanah prior to a Shemitah year, the tree must be uprooted. Rabbi Yehuda maintains that a tree takes root within three days. Rabbi Yosi and Rabbi Shimon hold that a tree takes root within two weeks of its being planted. Rav Nachman rules in the name of Rabbah bar Avuha that according to all these opinions, you must add an additional thirty days to satisfy the requirement of adding from the ordinary onto the holy.

The Gemora now explains Shmuel’s statement: When Shmuel said that the halacha follows Rabbi Yosi with respect to a woman bleeding in labor, he was referring to the following Mishna: How many days can a woman’s labor last in order that we will attribute her discharges to the impending childbirth (and not render her a zavah, which would make her tamei)? Rabbi Meir says: Even forty or fifty days before childbirth. Rabbi Yehudah says: Only a month prior to childbirth. Rabbi Yosi and Rabbi Shimon say: Labor will never be longer than two weeks.

When Shmuel said that the halacha follows Rabbi Yosi with respect to rendering unfit, he was referring to the following Mishna: One who spreads his vines over the grain of his friend, has rendered the grain unfit on account of kilayim of the vineyard and he will be liable to pay; these are the words of Rabbi Meir. Rabbi Yosi and Rabbi Shimon say: A person cannot prohibit something that does not belong to him. (83a – 83b)

The Gemora inquires: What would Shmuel hold regarding an androgynous?

The Gemora answers: Come and hear from what Shmuel said to Rav Anan: Rabbi Yosi’s ruling in the braisa cannot be correct because Rabbi Yosi taught differently in the Mishna.

The Gemora inquires: What would Shmuel hold regarding grafting?

The Gemora answers: Come and hear from what Shmuel said to Rav Anan: The law should be taught according to the one that said: “three and thirty.”

The Gemora inquires: What would Rav hold regarding a woman in labor?

The Gemora says: Let this matter remain unresolved (until Eliyahu comes).

The Gemora inquires: What would Rav hold regarding rendering unfit?

Rav Yosef says: Come and hear from that which Rav Huna said in the name of Rav: The halacha is not in accordance with Rabbi Yosi. (83b)

The Mishna had stated: Rabbi Yehudah says: A tumtum (undetermined sex) that was torn and was found to be a male, does not submit to chalitzah, because he is classified as a saris.

Rav Ami said: What would Rabbi Yehuday say regarding the tumtum of Biri, whom they performed a surgery and tore open his genital covering, and afterwards, he fathered seven children?

The Gemora answers: Rabbi Yehudah would say to you: Go check and see from where his children came (his wife probably committed adultery). (83b)

The Gemora cites a braisa: Rabbi Yosi the son of Rabbi Yehudah said: A tumtum should not perform a chalitzah because he might be torn open and found to be a saris-chamah.

The Gemora asks: Is every tumtum that is torn open a male?

The Gemora answers: The following is what he meant to say: A tumtum should not perform a chalitzah because he might be torn open and found to be a female; and even if he is found to be a male, perhaps he will be found to be a saris-chamah. (83b)

Rav Shmuel bar Yehudah said in the name of Rabbi Abba the brother of Rabbi Yehudah bar Zavdi, who said the name of Rabbi Yehudah, who said it in the name of Rav: A male will be liable for stoning for cohabiting with an androgynous from either of two places (his anus or his female organ).

The Gemora asks from the following braisa: Rabbi Eliezer says: One is liable to stoning on account of cohabiting with an androgynous, as with a male. When is this ruling applicable? Only when a male cohabits with the androgynous through his male organ; however, if he cohabits with the androgynous through his female organ, he will be exempt from punishment.

The Gemora answers: This is a matter of a Tannaic dispute, and Rav said his statement according to the Tanna who maintains that he will be liable for either of two places. (83b)

[END]

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NINTH OR THE TENTH?

Rabbi Yochanan said as follows: "Were I living in those days, I would have ordained the fast for the 10th of Av; for on that day the greater part of the Beis Hamikdosh was burned." The Chachamim maintained that the day when the calamity began should be observed as a fast-day.

The Kotzker Rebbe asked from that famous Nimukei Yosef in Bava Kamma. Rabbi Yochanan holds that one is liable for sending out a fire because it is akin to shooting an arrow (isho mishum chitzov). The Nimukei Yosef explains that this is why one is permitted to light candles Friday afternoon even though they will be burning on Shabbos; since the candles were lit from before Shabbos, that is when he shot the arrow. According to this, why is Rabbi Yochanan stating here that he would have declared the fast on the tenth of Av if the fire started on the ninth?

The answer is that regarding Shabbos and damages, we are concerned with the action; when it occurred and how it happened. Regarding the Beis Hamikdosh being destroyed; we are not concerned with the action, rather with the result and it was burned on the tenth of Av. This is why Rabbi Yochanan said that if he were living in those days, he would have ordained the tenth of Av as the fast day. (Margaliyos HaShas)

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TWO RESURRECTIONS

The Gemora stated: Kol hamisavel al Yerushalyim zocheh vroeh bsimchasa – Anyone who mourns for Jerusalem will merit witnessing her joy.

The Ritva states that there are actually two periods of resurrection. One period is at the end of the era of our world, after the arrival of the Messiah, but an earlier one is at the time of building the Beis Hamikdosh. At that time, all those who died in exile will be woken up to take part in the rebuilding of the Beis Hamikdosh. Those who did not drop a tear will not be woken. There still exists a possibility that they may be woken at the end of time.

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LEARNING ON TISHA B'AV

We learned in a braisa: All ordinances applicable to a mourner are effective for everyone on Tisha B’Av. One must not eat, drink, anoint himself, wear leather shoes, or engage in marital relations. One is not permitted to read from the Torah, Prophets or the Writings. The Mishna, Gemora, Medrash, Halachos and Aggados may not be discussed. One may read from Scriptures or study from the Talmud in a place that he is not familiar with. He is allowed to read from Lamentations, Iyuv and from the unpleasant verses in Yirmiyah. Schoolchildren must not learn on that day because it is written: "The precepts of Hashem are upright, rejoicing the heart." Rabbi Yehuda disagrees and maintains that one may not even read nor study anything that he is not familiar with.

It is said in the name of the Maharsham that if a person thought of a novel idea in Torah on Tisha B’Av, he is permitted to write it down in an abbreviated manner in order that he does not forget it by the time nightfall arrives.

Aruch HaShulchan (554:5) rules that one is permitted to rule on a Torah related issue that is necessary for that day and he is allowed to settle a dispute after midday, where the litigants are advocating for an immediate resolution.

Maharil Diskin writes that even though the Rav is permitted to issue a ruling on Tisha B’Av, he is forbidden to accept payment.

The Maharsham writes that he compelled himself to conclude a response regarding a heter agunah on Tisha B’Av since the Bach writes: “Kol hamatir agunah achas ke’ilu banah achas mi’churvos Yerushalayim” – Whoever releases one agunah, it is regarded as if he built one of the ruins of Yerushalayim. (Sheorim Mitzuyanim B’halacha)

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WASHING ON TISHA B'AV

We asked Rabbi Doniel Neustadt as to the practical halachos regarding washing on Tisha B’av. Here is his response.

Washing any part of the body on Tishah B’av is forbidden. Washing is permitted in the case of…
*Dirty or soiled hands or other parts of the body. Any substance or discharge (e.g., a glutinous gel in the eye) may be rinsed off . [If soap is needed, it may be used. ]
*Awakening in the morning. One may wash netilas yadayim three times on each hand , but the water should reach only until the knuckles . After the hands are wiped but remain slightly damp, they may be passed over the face or the eyes .
*After using the bathroom and/or after touching a part of the body that is normally covered, but the water should reach only until the knuckles .
*Rinsing the mouth, but only in case of great discomfort . Care must be taken not to swallow the water. Mouthwash should not be used .
*Preparing food . If warm water is necessary, it may be used .
*Medical needs . Hot water may be used when needed .
*Preparation for davening . Some say that only the tips of the fingers [until the first joint ] should be washed .
*Washing dishes [after midday], if leaving them unwashed will attract insects , etc. It is proper not to use warm water.
*Eating bread, for those who are allowed to eat on Tishah b'Av. The hands should be washed to the wrists in the usual manner . Several poskim mention that one may also wash with mayim acharonim if he is always particular to do so .
*A baby who is bathed daily .
*A bride, who is allowed to wash her face up to 30 days after her wedding .

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LEARNING THROUGH HARDSHIPS - Yevamos 81 - Daf Yomi

The Mashgiach of Kaminetz, Rabbi Moshe Aharon Stern zt”l related the following incident: The Netziv once visited the Reshash, who was twenty-three years the Netziv’s senior. The Reshash posed to the Netziv a very difficult question that he had raised on Tosfos to Yevamos (81b) The Netziv, after pondering the question for some time, was able to resolve the difficulty by emending a word in Tosfos. The Reshash was satisfied with the answer of the Netziv, and the Reshash quotes the Netziv in his gloss on the Gemora. The Reshash concluded his comment with the praise (Mishlei 24:26): Sfisayim yishak, the lips of one who responds with proper words should be kissed.

Upon hearing the answer of the Netziv, The Reshash wondered why he did not merit providing the correct answer to his difficulty. The Netziv replied that the Reshash was wealthy, whereas the Netziv lived a life of poverty. The Netziv said: “When one studies Torah despite living a life of hardship, Hashem opens for him the wellsprings of Torah.”

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TERUMAH FACTS - Yevamos 81 - Daf Yomi

Rashi and many other Rishonim maintain that the requirement to separate terumah from figs and other fruits from a tree is only Rabbinical even in the times of the Beis Hamikdosh. The Biblical obligation of terumah only applies to grain, olives and grapes. The Gemora, that mentions Rabbinical terumah in the times of the Beis Hamikdosh can be referring to figs.

The Rambam (Terumos 2:1) holds that there is a Biblical obligation to separate terumah from all fruits on a tree. The Gemora, that mentions Rabbinical terumah in the times of the Beis Hamikdosh can be referring to vegetables or terumah from any land outside of Eretz Yisroel.

It emerges from our Gemora that there is an argument between Rabbi Yochanan and Rish Lakish if there is a Biblical requirement to separate terumah nowadays. The Rambam (ibid. 26) rules in accordance with Rish Lakish that there is only a Rabbinical obligation to separate terumah nowadays. The Ra’avad disagrees, and states that the halacha follows Rabbi Yochanan.

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Daf Yomi - Yevamos 81 - Highlights

The Mishna states: A saris-chamah (sterile from birth) Kohen who married the daughter of an Israelite, entitles her the right to eat terumah. Rabbi Yosi and Rabbi Shimon say: An androgynous (hermaphrodite) Kohen who married a daughter of an Israelite entitles her the right to eat terumah. Rabbi Yehudah says: A tumtum (undetermined sex) that was torn and was found to be a male, does not submit to chalitzah, because he is classified as a saris. An androgynous may marry, but may not be married by a man. Rabbi Eliezer says: One is liable to stoning on account of cohabiting with an androgynous, as with a male. (81a)

The Mishna had stated: A saris-chamah (sterile from birth) Kohen who married the daughter of an Israelite, entitles her the right to eat terumah.

The Gemora asks: Isn’t this halacha obvious? (If she is permitted to marry him, she should be entitled to eat terumah.)

The Gemora answers: One might have thought that only a Kohen who is capable of fathering children can entitle others to eat terumah; the Mishna teaches us that even if he does not have the ability of fathering children, he may still entitle others to eat terumah. (81a)

The Mishna had stated: Rabbi Yosi and Rabbi Shimon say: An androgynous (hermaphrodite) Kohen who married a daughter of an Israelite entitles her the right to eat terumah.

Rish Lakish said: He entitles her to eat terumah, but not the breast and the thigh from the shelamim. Rabbi Yochanan said: He even entitles her to eat the breast and the thigh from the shelamim.

The Gemora asks on Rish Lakish: What is the difference between the breast and the thigh and terumah? Both of them are Biblically prohibited for non-Kohanim!

The Gemora answers: We are discussing terumah of nowadays (after the destruction of the Beis Hamikdosh), which is only a Rabbinical requirement (since we are uncertain if the androgynous is a male or female, we apply the principle of acting leniently when there is uncertainty regarding a Rabbinic law).

The Gemora elaborates: Nowadays, the androgynous entitles his wife to eat terumah because separating terumah is only a Rabbinical requirement. However, in the times when the Beis Hamikdosh was in existence, he does not entitle her to eat the breast and thigh, and even Rabbinic terumah (from fruits and vegetables) because we are concerned that he will provide her with Biblical terumah as well. (81a)

Rabbi Yochanan said: An androgynous even entitles his wife to eat the breast and the thigh from the shelamim. Rabbi Yochanan said to Rish L:akish: Do you really hold that terumah nowadays is only a Rabbinical requirement?

Rish Lakish replied: Yes, I do, for I have learned in a braisa that if a round cake of pressed figs (of terumah) became mixed with other round cakes of pressed figs, the mixture is permitted. (If one cake of terumah was mixed up with a hundred non-consecrated cakes of the same size, or if a cake of terumah that was tamei was mixed up with a hundred such cakes of terumah that is tahor, the entire quantity is permitted. This proves that terumah at the present time is only a Rabbinical requirement, since such nullification, had the requirement been Biblical, would not, owing to its significance, (based on the fact that it is commonly counted when sold) have been permitted. Though the terumah of figs, like that of all other fruit of trees, is at all times a Rabbinical requirement only, its nullification would not have been permitted at the present time had there been any Biblical terumah in existence at the same time. The nullification of the Rabbinical terumah would have been forbidden as a preventive measure against the possible assumption that the Biblical terumah also might be nullified.)

Rabbi Yochanan said to Rish Lakish: But I have learned in a braisa that if a piece of tamei chatas meat became mixed with pieces of tahor chatas meat, the mixture is permitted. (This proves that even Biblically prohibited foods, which are commonly counted when sold, may nevertheless become nullified.) Did we learn in the Mishna that anything that is commonly counted is considered significant and cannot be nullified? (This seemed to have been Rish Lakish’s reading of the Mishna because pressed figs are commonly counted when they are sold, but sometimes, they are sold by estimation.) We learned in the Mishna that anything which is exclusively counted is considered significant and cannot be nullified! (This is why the pressed figs and the meat slices can become nullified.)

The Gemora cites the Mishna: If a man had bundles of fenugreek of kilayim (the prohibition against planting together different species of vegetables, fruit or seeds) of the vineyard, they must be burned (one cannot derive any benefit from the growths and they must be burned). If these became mixed up with other permitted bundles, they must all be burned; these are the words of Rabbi Meir. The Chachamim say: The prohibited bundles may become nullified in a mixture of two hundred and one (if the permitted food is two hundred times the quantity of the forbidden kilayim). For Rabbi Meir would say the following: Anything that is commonly counted is considered significant and cannot be nullified. And the Chachamim said: There are only six items which cannot be nullified (since they are big, expensive and the best of their species). Rabbi Akiva said: There are in fact seven. The following are the items: Nuts from Perech, pomegranates from Badan, sealed jugs of wine, shoots of beets, cabbage roots and Greek gourds. Rabbi Akiva adds loaves of homemade bread. Of these items, those which are subject to the law of orlah (applied to newly-planted trees for a period of three years during which their fruits must not be eaten) impart the prohibition of orlah and those which are subject to the law of kilayim of the vineyard impart that of the kilayim of the vineyard.

Rabbi Yochanan said: The correct version of Rabbi Meir is that anything which is exclusively counted is considered significant and cannot be nullified. Rish Lakish said: The correct version of Rabbi Meir is that anything which is commonly counted is considered significant and cannot be nullified. (81a – 81b)

The Gemora asks: What is the braisa regarding the pieces of chatas meat that Rabbi Yochanan mentioned above?

The Gemora answers: It was taught in a braisa: If a piece of tamei chatas meat became mixed with one hundred pieces of tahor chatas meat, and likewise, if a piece of tamei lechem hapanim (showbread; twelve loaves that were on the Shulchan from Shabbos to Shabbos) became mixed with one hundred pieces of tahor lechem hapanim, the mixture is permitted. Rabbi Yehudah maintains that it does not become nullified (because in his opinion, something which is intermingled with its own kind cannot become nullified). But if a piece of tahor chatas meat became mixed with one hundred pieces of unconsecrated tahor meat, and likewise, if a piece of tahor lechem hapanim became mixed with one hundred pieces of tahor unconsecrated breads, everyone agrees that they do not become nullified. (Nullification would have removed the Biblical prohibition of eating consecrated food by a non-Kohen. As, however, the entire mixture, which consists of pieces that are sometimes counted, may be eaten even without recourse to nullification by a Kohen to whom it could be sold, though this might have to be done at a reduced cost, the law of nullification, which is applied even in such circumstances whenever the prohibition is Rabbinical, as in the case of the cake of figs is not applied here where it is Biblical.)

Rabbi Yochanan concludes his proof from the braisa: The first portion of the braisa states that the piece of meat can become nullified even though it is commonly counted.

Rabbi Chiya the son of Rabbi Huna said: The braisa is discussing a piece of meat that dissolved. (Even Rish Lakish will agree that it can become nullified because it is not commonly counted.)

The Gemora asks: Why does Rabbi Yehudah rule that the piece of meat cannot become nullified?

The Gemora answers: Rabbi Yehudah maintains that something which is intermingled with its own kind cannot become nullified. (81b – 82a)

[END]

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EIGHT-MONTH BABIES - Yevamos 80 - Daf Yomi

The Gemora states that a child born in its eighth month will not survive. In today’s day and age, that does not seem to be the case. How are we to understand this?

Rabbi Gil Student wrote an essay regarding the halachic responses to scientific development. Here is an excerpt from his discussion. (It can be found in its entirety here: aishdas)

As we already mentioned, the Talmud claims that babies born in their eighth month from conception are not viable. The Chazon Ish (Yoreh Deah 155:4) explains that the sages observed that babies born in their seventh month rarely survived. However, a small but significant percentage lived. In the eighth month, the survival rate dropped even lower. But in the ninth month, the survival rate rose sharply. This phenomenon is reflected in other ancient medical works such as those by Hippocrates and Galen (see J. Preuss, Biblical and Talmudic Medicine, 14:14). Keep in mind that until recently infant mortality was very high. Many newborns never lived past their first month. Indeed, this is reflected in halacha in that parents do not fully mourn a baby that dies in its first month alive. Before the month passed, there was a strong likelihood that the baby would not survive.

To explain this drop in infant survival in the eighth month, the sages adopted the medical explanation that babies develop along two paths - a seven month path and a nine-month path. Babies in the seven-month path progress at a rate so that they are fully developed after seven months while babies in the nine-month path are only fully developed after nine months. A nine-month baby born in its seventh or eighth month cannot survive because it is not sufficiently developed. However, the rabbis observed that there were still some very few babies born in their eighth month who survived. These babies, it was explained, were seven-month babies who were born late.

With all this in mind, we can understand the following from Tosefta Shabbat 16:4.

Who is an eight-month [baby]? Any [baby] who has not completed his months. Rebbe says: His signs identify him - his hair and fingernails... Rabban Shimon ben Gamliel says: Whoever has lasted thirty days is not a stillborn...

According to the first anonymous opinion, any baby born in its eighth month, i.e. who has not completed its nine-month development period, is considered to be an eight-month baby that will not survive. According to Rebbe, only a baby that is born in its eighth month and is not developed enough to have fingernails and hair is considered to be an eight-month baby. Even if a baby is born in its eighth month, if it is fully developed it is deemed viable and treated appropriately. According to R' Shimon ben Gamliel, any baby that survives its first thirty days is deemed viable. In Shabbat 136a, Shmuel rules like R' Shimon ben Gamliel. Whether R' Shimon ben Gamliel is coming to add to Rebbe's criteria, so that even a partially developed eight-month baby is deemed viable if it survives thirty days, or he is coming to subtract from Rebbe's criteria, or a number of other possibilities is discussed by the commentaries. For summaries of these discussions see R' Aharon Yaffen's footnotes to Mossad HaRav Kook's edition of the Ritva on Yevamot 80b and Minchat Yitzchak 4:123:3. Regardless, the Shulchan Aruch (Orach Chaim 330:7-8, Yoreh Deah 266:11) rules that a baby born in its eighth month that has fingernails and hair is considered viable in regard to the laws of Shabbat. What is significant is that the rabbis recognized that a baby born in its eighth month can live a full and long life. However, based on their observations and medical knowledge, they said that the overwhelming majority does not.

Halachic Ramifications

The non-viability of an eight-month baby has halachic ramifications. A widow whose only child is a non-viable eight-month baby is considered childless in regard to the levirate marriage. If she had given birth to a viable child she would not be obligated to perform the levirate marriage or chalitzah ceremony. However, since her child's chances of living are so remote she is considered childless and is prohibited from remarrying until she fulfills the necessary biblical requirements (Yevamot 80a-b).

Additionally, the needs of a seriously ill person may be cared for even if they require violating the laws of Shabbat. A newborn baby, in particular, requires great care. While most of those needs do not require violating Shabbat, if they did Shabbat could be violated. However, for a non-viable baby that has essentially no chance of survival, Shabbat may not be violated. The concerns of an eight-month baby that does not have fully grown fingernails and hair do not override Shabbat (Shabbat 136a).

Today, modern science gives us a different understanding of a fetus' development than that of the sages. Babies develop steadily until their last month. Those born in their seventh month are less likely to survive than those born in their eighth month. Premature babies can suffer from difficulty in modulating temperature and underdeveloped capillaries and lungs which can be alleviated with respirators and incubators. Today, babies born in their eighth month routinely survive. How should halacha respond to this change?

Defining an Eight-Month Baby

Before we address this question, let us first discuss an often overlooked issue - a definition of terms.

What is an eight-month baby?

The Talmud says that a normal (nine-month) gestation period is approximately 271 days from conception. Modern medicine places the due date of a baby at approximately 280 days from the mother's last menstrual cycle. Since a religious woman may only have marital relations beginning with 12 days after starting to menstruate (after she immerses in a mikva), the 271 days translate into approximately 283 days, which is essentially equal to modern medicine's 280.

Modern medicine divides the 280 days into ten months of 28 days. What is generally called the ninth and final month is really the tenth month - from weeks 36 to 40. The eighth month is from weeks 32 to 36 and the seventh month is from weeks 28 to 32.

Halacha divides the 271 days into nine months of about 30 days each (Responsa Rashbash 513). Translating that into the weeks we used above (from the last menstruation), the ninth month is from weeks 35.7 to 40. The eighth month is from weeks 31.4 to 35.7 and the seventh month is from 27.1 to 31.4.

Additionally, the simple understanding of the Talmud is that an eight-month baby is one born after eight full months, i.e. after 35.7 weeks. This is the understanding of most commentators with only the Ramban dissenting (Responsa Rivash 446).

It is a daily occurrence for babies to be born at 36 weeks and survive without the assistance of respirators or incubators. With their assistance, the survival rate is greater than 95%. How should the halachic community react to this undeniable reality?

The first point that needs to be made is that halacha only needs to address those babies born without fully grown fingernails and hair. Only those born between 35.7 and 40 weeks who are under-developed are an issue. Never the less, the problem remains.

2b. Nature Changed

The Rashbash (R' Shlomo ben Shimon Duran; early 15th century) quotes the authors of Tosafot as saying that already by their time nature had changed. While in the days of the Talmud babies' months were determined by how many months had been completed, they are now calculated by which month the baby is in. While for the Talmud a baby born in weeks 35.7 to 40 (after eight months) was premature, this baby would now be considered full-term (a nine-month baby). Now, only babies born in weeks 31.4 to 35.7 (in their eighth month) are considered premature (Responsa Rashbash 513). This is how the Rama ruled in Shulchan Aruch (Even HaEzer 156:4). The Chazon Ish (Yoreh Deah 155:4) continued along this line and noted that today a significant number of babies born in their eighth month are viable on their own. This must mean that nature has changed, although he does not speculate as to whether it is due to better prenatal care, healthier diets, or other causes. Since nature has changed and eight-month babies are no longer inherently at risk, the halacha as it relates to current nature is different than it is in regard to talmudic nature. Since eight-month babies are deemed viable, Shabbat may be violated for their needs and women who give birth to such a baby are not considered childless.

There were two issues that we pointed out above. One is that babies born after eight months are not only viable but are more viable than those born after seventh months. The other is that with modern medical care even premature babies can survive. The Chazon Ish solved both issues by ruling that nature has changed and that eight-month babies are no longer born non-viable. Any baby that can survive, whether on its own or with medical help, is considered a viable baby.

Alternate Solution

The Minchat Yitzchak (4:123:19-20) refused to go that far. He was not ready to say that the talmudic understanding of the development of babies is no longer true. Of the two issues above, he only addressed the second. Even though eight-month babies are inherently less viable than others, modern medical care can help those babies survive. Since these babies become viable through medical assistance they are therefore viable. It is not that nature has changed. Rather, modern medicine has found techniques to help the non-viable survive.

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SORAH WAS AN AYLONIS - Yevamos 80 - Daf Yomi

The Torah relates that Sorah died at the age of 127. Rashi notes that the Torah mentions “years” after each component of her age (“100 years and 20 years and 7 years”) in order to teach that each of these units of her life had a unique significance. At the age of 100, Sorah was just as free of sin as she had been when she turned 20, as the Heavenly Court doesn’t punish a person for his sins until he turns 20. Although a person doesn’t receive punishment, his transgressions are still considered sins – as evidenced by the fact that somebody under the age of 20 is still required to bring a sacrifice in order to atone for his transgressions – so how can Rashi write that a person who turns 20 is free of all sins?

Reb Oizer Alpert cites the Brisker Rov who answers that the Gemora in Yevamos (64b) states that Sorah was an aylonis – a woman who is unable to have children. Such a woman never develops the physical signs of adulthood. The Gemora in Yevamos (80a) rules that when a woman turns 20 without becoming physically mature, she is declared an aylonis and legally considered to be an adult from that time onward. Therefore, although sins which are committed before a person turns 20 are indeed considered sins even if they aren’t punishable at that time by the Heavenly Court, the transgressions of Sorah were indeed not considered sins, as she was legally viewed as a minor until she turned 20!

Rashi additionally writes that Sorah was as beautiful at the age of 20 as she had been at the age of 7. In what way is this comparison considered praiseworthy, as a woman is typically expected to be considered prettier at 20 than she was at 7? We may similarly answer by noting that the Gemora in Yevamos (80b) lists the signs commonly associated with an aylonis, all of which are features traditionally viewed as being ugly. The Gemora in Sanhedrin (49b) states that women in these early generations were able to give birth as young as 8. As this was the age at which their bodies began to develop and mature, this was also the age at which an aylonis began to exhibit signs of ugliness. Although most women are expected to be prettier at age 20 than they were at age 7, Sorah became a full-fledged aylonis at age 20, so Rashi notes that she was nevertheless just as beautiful as she had been at age 7 before her condition developed!

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