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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Daf Yomi - Yevamos 80 - Highlights

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

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

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

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

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

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

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

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

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

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

The Gemora asks: What is a saris-chamah?

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

The Gemora asks: How is this determined?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[END]

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