[Translated with notes (not included here) by Rev. Dr. Israel W. Slotki,
in the two volume edition of Yebamoth within the collection: The Babylonian
Talmud, ed. by Rabbi Dr. I. Epstein, London: Soncino, 1936.]
MISHNAH. AN UNCIRCUMCISED [PRIEST] AND ALL LEVITICALLY UNCLEAN PERSONS MAY NOT EAT TERUMAH. THEIR WIVES AND SLAVES, HOWEVER, MAY EAT TERUMAH. [A PRIEST WHO IS] WOUNDED IN HIS STONES AND ONE WHOSE MEMBRUM IS CUT OFF, AS WELL AS THEIR SLAVES, MAY EAT TERUMAH, BUT THEIR WIVES MAY NOT. IF, HOWEVER, NO COHABITATION TOOK PLACE AFTER THE MAN WAS WOUNDED OR HAD HIS MEMBRUM CUT OFF, THE WIVES ARE PERMITTED TO EAT.
WHO IS TERMED A PEZU'A DAKKAH? A MAN WHO IS WOUNDED EITHER IN BOTH HIS
STONES, OR EVEN ONLY IN ONE OF THEM. AND A KERUTH SHOFEKAH? A MAN WHOSE
MEMBRUM IS CUT OFF. IF, HOWEVER, [ANY PART] OF THE CORONA REMAINED, EVEN
SO MUCH AS A HAIR'S BREADTH, THE MAN IS REGARDED AS FIT.
[Notes: Saris is the Hebrew word for eunuch used in the Old Testament. Notice that the rabbis distinguish between the "man-made saris" and the "congenital saris" or "saris by nature". -- Halizah, mentioned in the following passage, is the ceremony which a man must submit to in order to escape the duty to marry the wife of his deceased brother if his brother was childless. See Deuteronomy 25:5-9.]
MISHNAH. R. JOSHUA STATED: I HAVE HEARD THAT A SARIS SUBMITS TO HALIZAH AND THAT HALIZAH IS ARRANGED FOR HIS WIFE, AND ALSO THAT A SARIS DOES NOT SUBMIT TO HALIZAH AND THAT NO HALIZAH IS TO BE ARRANGED FOR HIS WIFE, AND I AM UNABLE TO EXPLAIN THIS. R. AKIBA SAID, I WILL EXPLAIN IT: A MAN-MADE SARIS SUBMITS TO HALIZAH AND HALIZAH IS ALSO ARRANGED FOR HIS WIFE, BECAUSE THERE WAS A TIME WHEN HE WAS IN A STATE OF FITNESS. A SARIS BY NATURE NEITHER SUBMITS TO HALIZAH NOR IS HALIZAH ARRANGED FOR HIS WIFE, SINCE THERE NEVER WAS A TIME WHEN HE WAS FIT. R. ELIEZER SAID: NOT SO, BUT A SARIS BY NATURE SUBMITS TO HALIZAH AND HALIZAH IS ALSO ARRANGED FOR HIS WIFE, BECAUSE HE MAY BE CURED. A MAN-MADE SARIS NEITHER SUBMITS TO HALIZAH NOR IS HALIZAH ARRANGED FOR HIS WIFE, SINCE HE CANNOT BE CURED. R. JOSHUA B. BATHYRA TESTIFIED CONCERNING BEN MEGOSATH, WHO WAS A MAN-MADE SARIS LIVING IN JERUSALEM, THAT HIS WIFE WAS ALLOWED TO BE MARRIED BY THE LEVIR, THUS CONFIRMING THE OPINION OF R. AKIBA.
THE SARIS NEITHER SUBMITS TO HALIZAH NOR CONTRACTS THE LEVIRATE MARRIAGE, AND ALSO A WOMAN WHO IS INCAPABLE OF PROCREATION [aionolit] MUST NEITHER PERFORM HALIZAH NOR BE TAKEN IN LEVIRATE MARRIAGE.
IF A SARIS SUBMITTED TO HALIZAH FROM HIS SISTER-IN-LAW, HE DOES NOT THEREBY CAUSE HER TO BE DISQUALIFIED. IF, HOWEVER, HE COHABITED WITH HER HE CAUSES HER TO BE DISQUALIFIED, SINCE HIS ACT IS SHEER PROSTITUTION. SIMILARLY, WHERE BROTHERS SUBMITTED TO HALIZAH FROM A WOMAN INCAPABLE OF PROCREATION [aionolit], THEY DO NOT THEREBY CAUSE HER TO BE DISQUALIFIED. IF, HOWEVER, THEY COHABITED WITH HER, THEY CAUSE HER TO BE DISQUALIFIED, SINCE COHABITATION WITH HER IS AN ACT OF PROSTITUTION.
GEMARA. Observe! R. Akiba was heard to state that 'Those who are subject to the penalty of negative precepts are on a par with those who are subject to the penalties of kareth'; but those who are subject to the penalty of kareth are not eligible for halizah or levirate marriage!--R. Ammi replied: 'What we are dealing with here is with a case, for instance, where his brother had married a proselyte; and R. Akiba is of the same opinion as R. Jose, who stated that an assembly of proselytes is not regarded as an assembly.' If so, he should also be permitted to contract levirate marriage!--The law is so indeed; only because R. Joshua used the expression 'SUBMITS TO HALIZAH' he [R. Akiba] also used the expression 'SUBMITS TO HALIZAH'. This may also be proved by inference; for it was stated, R. JOSHUA B. BATHYRA TESTIFIED CONCERNING BEN MEGOSATH, WHO WAS A MAN-MADE SARIS LIVING IN JERUSALEM, THAT HIS WIFE WAS ALLOWED TO BE MARRIED BY THE LEVIR, THUS CONFIRMING THE OPINION OF R. AKIBA. This proves it.
Rabbah raised an objection: He who is wounded in the stones or has his privy member cut off, a man-made saris, and an old man, may either participate in halizah or contract levirate marriage. How? If these died and were survived by wives and brothers, and those brothers addressed a ma'amar to the wives, or gave them letters of divorce, or participated with them in halizah, their actions are legally valid; if they cohabited with them, the widows become their lawful wives.--If the brothers died and they addressed a ma'amar to their wives, or gave them divorce, or participated with them in halizah, their actions are valid; and if they cohabited with them the widows become their lawful wives, but they may not retain them, because it is said in Scripture, He that is wounded in the stones or hath his privy member cut off shall not enter into the assembly of the Lord. This clearly proves that we are dealing with members of the assembly!--The fact is, said Rabbah, that this is a case where the widow became subject to him first and he was subsequently maimed. Said Abaye to him: Let the prohibition against the maimed man override the positive precept of the levirate marriage! Did we not learn [of a similar case]: R. Gamaliel said, If she made a declaration of refusal well and good; and if not, let [the elder sister] wait until the minor grows up and she will then be exempt as his wife's sister. Thus it follows that the prohibition against a wife's sister has the force of overriding [that of the levirate marriage]; here also, then, let the prohibition against the maimed man have the force of overriding it!--But, said R. Joseph, this Tanna represents the view of the Tanna of the school of R. Akiba, who maintains that [the issue] of a union which is subject to the penalty of negative precepts owing to consanguinity is regarded as a bastard, but [the issue] of a union that is merely subject to the penalty of negative precepts is not a bastard.
The text, 'To raise up unto his brother a name' should be applicable to this case also, but he, surely, is incapable of raising it!--Raba replied: If so, there exists no woman who is eligible for the levirate marriage whose husband was not a saris by nature for a short time, at least, prior to his death.
Against R. Eliezer, however, Raba's reply presents a [valid] objection!--There it is only a general state of debility that had set in.
What are we to understand by A SARIS BY NATURE?--R. Isaac b. Joseph replied in the name of R. Johanan: Any man [80a] who has not experienced a moment [of life] in a state of fitness.--How could this be ascertained?--Abaye replied: [By observing whether] when he urinates no arch is formed. What are the causes?--That the child's mother baked at noon and drank strong beer.
R. Joseph said: It must have been such a saris of whom I heard
Ammi saying, 'He who is afflicted from birth', and I did not know [at the
time] to whom he was referring. But should we not take into consideration
the possibility that he might have recovered in the meantime!--Since he
suffered from affliction in his early as well as in his later life, no
[possible interval of recovery] need
be taken into consideration.
R. Mari raised an objection: R. Hanina b. Antigonos stated, 'It is to be examined three times in eighty days'!--Precautions are to be taken in respect of one limb; in respect of the entire body no such precautions need be taken.
R. ELIEZER SAID: NOT SO etc. A contradiction may be pointed out: If at the age of twenty he did not produce two hairs they must bring evidence that he is twenty years of age and he, being confirmed as a saris, neither submits to halizah nor performs the levirate marriage. If the woman at the age of twenty did not produce two hairs, they must bring evidence that she is twenty years of age and she, being confirmed as a woman who is incapable of procreation [aionolit], neither performs halizah nor is taken in levirate marriage; so Beth Hillel. But Beth Shammai maintain that with the one as well as with the other [this takes place at] the age of eighteen. R. Eliezer said, In the case of the male, the law is in accordance with Beth Hillel and in the case of the female, the law is in accordance with Beth Shammai, because a woman matures earlier than a man! Rami b. Dikuli replied in the name of Samuel: R. Eliezer changed his view.
The question was raised: From which statement did he withdraw?--Come and hear what was taught: R. Eliezer said, A congenital saris submits to halizah, and halizah is arranged for his wife, because cases of such a nature are cured in Alexandria in Egypt.
R. Eleazar said: As a matter of fact he did not change his view at all, but that statement was taught in respect [of the age of] punishment.
It was stated: If a person between the age of twelve years and one day and that of eighteen years ate forbidden fat, and after the marks of a saris had appeared, he grew two hairs, Rab ruled that the person is deemed to be a saris retrospectively. But Samuel ruled [that the person is regarded as] having, been a minor at that time.
R. Joseph demurred against Rab: According to R. Meir, a woman who is incapable of procreation [aionolit] should be entitled to a fine!--Abaye replied: She passes from her minority [directly] into adolescence. The other said to him: May all such fine sayings be reported in my name. For so it was taught: A saris is not tried as a stubborn and rebellious son, because no stubborn and rebellious son is tried unless he bears the mark of the pubic hair. Nor is a woman who is incapable of procreation [aionolit] tried as a betrothed damsel because from her minority she passes [directly] into adolescence.
R. Abbahu stated: On [the basis of] the marks of a saris, of a woman incapable of procreation [aionolit], and of an eight-[month] child no decision is made until they attain the age of twenty. Is, however, an eight-[month] child viable? Surely it was taught: An eight-month child is like a stone, and it is forbidden to move him; only his mother may bend over him and nurse him [80b] in order to avert danger!--Here we are dealing with one whose marks have not been developed. For it was taught: Who is an eight-month child? He whose months [of conception] have not been completed. Rabbi said: The marks, his hair and nails which were not developed, would indicate it. The reason then is because they were not developed, but had they been developed it would have been assumed that the child was a seven-month one only his [birth] was somewhat delayed.
With reference, however, to the practical decision which Raba Tosfa'ah gave in the case of a woman whose husband had gone to a country beyond the sea and remained there for a full year of twelve months, where he declared the child legitimate, in accordance with whose [view did he act]? [Was it] in accordance with that of Rabbi who maintains that [birth] may be delayed!--Since R. Simeon b. Gamaliel also maintains that [birth may] be delayed, he acted in agreement with a majority. For it was taught: R. Simeon b. Gamaliel said: Any human child that lingers for thirty days can not be regarded as a miscarriage.
Our Rabbis taught: Who is a congenital saris? Any person who is twenty years of age and has not produced two pubic hairs. And even if he produced them afterwards he is deemed to be a saris in all respects. And these are his characteristics: He has no beard, his hair is lank, and his skin is smooth. R. Simeon b. Gamaliel said in the name of R. Judah b. Jair: Any person whose urine produces no froth; some say: He who urinates without forming an arch; some say: He whose semen is watery; and some say: He whose urine does not ferment. Others say: He whose body does not steam after bathing in the winter season. R. Simeon b. Eleazar said: He whose voice is abnormal so that one cannot distinguish whether it is that of a man or of a woman.
What woman is deemed to be incapable of procreation [aionolit]?--Any woman who is twenty years of age and has not produced two pubic hairs. And even if she produces them afterwards she is deemed to be a woman incapable of procreation [aionolit] in all respects. And these are her characteristics: She has no breasts and suffers pain during copulation. R. Simeon b. Gamaliel said: One who has no mons veneris like other women. R. Simeon b. Eleazar said: One whose voice is deep so that one cannot distinguish whether it is that of a man or of a woman.
It was stated: As to the characteristics of a saris, R. Huna stated, [Impotency cannot be established] unless they are all present. R. Johanan, however, stated: Even if only one of them is present. Where two hairs were produced all agree that impotency cannot be established unless all characteristics are displayed. They only differ in the case where these were not produced. With reference, however, to what Rabbah b. Abbuha said to the Rabbis, 'Examine R. Nahman, and if his body steams I will allow him to marry my daughter'; in accordance with whose view [was he acting]? [Was it] according to R. Huna!--No; R. Nahman had some stray hairs.
THE SARIS NEITHER SUBMITS TO HALIZAH NOR CONTRACTS THE LEVIRATE MARRIAGE, AND SO ALSO A WOMAN WHO IS INCAPABLE OF PROCREATION [aionolit] etc. The saris was mentioned in the same way as the woman who is incapable of procreation [aionolit]; as the woman's incapacity is due to an act of heaven so must that of the saris be an act of heaven; and this anonymous [Mishnah] is in agreement with R. Akiba who stated [that halizah applies] only to a man-made [saris but] not [to one afflicted] by the hand of heaven.
IF A SARIS SUBMITTED TO HALIZAH FROM HIS SISTER-IN-LAW, HE DOES NOT THEREBY CAUSE HER TO BE DISQUALIFIED etc. The reason then [why when HE COHABITED WITH HER HE CAUSES HER TO BE DISQUALIFIED] is because he cohabited with her; another man, however, does not; [81a] is this, then, an objection to the view of R. Hamnuna who stated that a widow awaiting the decision of her levir who committed adultery is disqualified [from marrying her] brother-in-law!--No; the same law is applicable to [the case of cohabitation with] another man also; only because the first clause was taught in respect of himself, the latter clause also was taught in respect of himself.
SIMILARLY, WHERE BROTHERS SUBMITTED TO HALIZAH FROM A WOMAN INCAPABLE OF PROCREATION [aionolit] etc. The reason then [why when THEY COHABITED WITH HER THEY CAUSE HER TO BE DISQUALIFIED] is because they cohabited with her, but had they not cohabited with her they would not; in accordance with whose view [is this statement made]?--Not in accordance with that of R. Judah; for should it [be suggested that it is in agreement with] R. Judah, he, surely, [it might be objected,] stated that a woman incapable of procreation [aionolit] is regarded as a harlot.
MISHNAH. IF A PRIEST WHO WAS A SARIS BY NATURE MARRIED THE DAUGHTER OF AN ISRAELITE, HE CONFERS UPON HER THE RIGHT OF EATING TERUMAH. R. JOSE AND R. SIMEON STATED: IF A PRIEST WHO WAS AN HERMAPHRODITE MARRIED THE DAUGHTER OF AN ISRAELITE, HE CONFERS UPON HER THE RIGHT TO EAT TERUMAH.
R. JUDAH STATED: IF A TUMTUM, WAS OPERATED UPON AND HE WAS FOUND TO BE A MALE, HE MUST NOT PARTICIPATE IN HALIZAH, BECAUSE HE HAS THE SAME STATUS AS A SARIS. THE HERMAPHRODITE MAY MARRY [A WIFE] BUT MAY NOT BE MARRIED [BY A MAN]. R. ELIEZER STATED: [FOR COPULATION] WITH AN HERMAPHRODITE THE PENALTY OF STONING IS INCURRED AS [IF HE WERE] A MALE.
GEMARA. [Is not this] obvious!--It might have been assumed that only one who is capable of propagation is entitled to bestow the right of eating and that he who is not capable of propagating is not entitled to bestow the right; hence we were taught [that even the saris may bestow the right].
R. JOSE AND R. SIMEON STATED ... HERMAPHRODITE. Resh Lakish said: He
CONFERS UPON HER THE RIGHT OF EATING TERUMAH but does not confer upon her
the right to eat of the breast and shoulder. R. Johanan, however, said:
He also confers upon her the right to eat of the breast and shoulder...
...We learned, THE HERMAPHRODITE MAY MARRY [A WIFE]!--Read, 'If he married'. But, surely, it was stated. MAY MARRY!--And even in accordance with your view what is the meaning of BUT MAY NOT BE MARRIED [BY A MAN]? Consequently it must be granted that as MAY...BE MARRIED implies an act that had already been performed, so also MAY MARRY implies an act that had already been performed. It may still be urged: No; MAY MARRY implies that the act is permissible; but MAY NOT BE MARRIED implies, not even if the act had already been performed. But surely since it was taught in the final clause, R. ELIEZER STATED: [FOR COPULATION WITH] AN HERMAPHRODITE THE PENALTY OF STONING IS INCURRED AS [IF HE WERE] A MALE, it is to be inferred that the first Tanna was doubtful on the point!--The law was clear to the one Master as well as to the other Master; the only difference between them was the question of stoning for copulation through either of his two organs. One Master was of the opinion that the penalty of stoning is incurred by copulation through either of the two organs, while the other Master, was of the opinion [that it is incurred through the male organ only] AS [IF HE WERE] A MALE.
Rab said: [83a] Our Mishnah cannot be maintained in the presence of the following Baraitha. For it was taught: R. Jose stated, 'The hermaphrodite is a creature sui generis, and the Sages did not determine whether he is a male or a female'. On the contrary; the Baraitha cannot be maintained in the face of our Mishnah!--As R. Jose left his colleague it may be inferred that he changed his opinion.
Samuel, however, said: The Baraitha cannot be maintained in the face of our Mishnah. On the contrary; our Mishnah cannot be maintained in the face of the Baraitha, since Samuel was heard to take note of an individual opinion!--This applies only to a case where the Mishnah is not thereby uprooted; when the Mishnah, however, is thereby uprooted it need not be taken into consideration.
At the school of Rab it was stated in the name of Rab, that the halachah is in agreement with R. Jose in respect of the hermaphrodite and grafting; and Samuel stated: In respect of protracted labour and forfeiture.
As to the 'hermaphrodite', there is the ruling just mentioned. 'Grafting'?--As we have learned: There must be no planting, no sinking and no grafting on the eve of the Sabbatical Year within thirty days before the new year; and if one planted or sank or grafted, the tree must be uprooted. R. Judah said: Any grafting which takes no root within three days will never take root. R. Jose and R. Simeon stated: [Within] two weeks. And, [in reference to this] R. Nahman stated in the name of Rabbah b. Abbuha that according to him who stated, 'thirty days', thirty and thirty are required; according to him who stated 'three days', three and thirty are required; and according to him who stated 'two weeks', two weeks and thirty days are required.
'And Samuel stated: In respect of protracted labour and forfeiture'. 'Protracted labour'?--As we learned: How long does the period of protracted labour continue? R. Meir said: Forty or fifty days. R. Judah said: Her [ninth] month is sufficient. R. Jose and R. Simeon said: Protracted labour cannot extend beyond two weeks. 'Forfeiture'?--As we have learned: If one causes his vine to overhang above the crops of his neighbour, behold he causes thereby their forfeiture, and he is liable to make compensation; so R. Meir. R. Jose and R. Simeon said: [83b] No man can impose a prohibition upon that which is not his.
The question was raised: What would Samuel have said with regard to the hermaphrodite?--Come and hear what Samuel said to R. Anan: The Baraitha cannot be maintained in the face of our Mishnah. What would Samuel have said in respect of grafting?--Come and hear what Samuel said to R. Anan: Teach in accordance with the view of him who stated 'three and thirty'.
What is the opinion of Rab in respect of protracted labour?--This is undecided.
What is Rab's opinion in respect of forfeiture? R. Joseph replied, Come and hear what R. Huna stated in the name of Rab: The halachah is not in agreement with R. Jose.
Said Abaye to him: What reason do you see for relying upon this statement? Rely rather on that which R. Adda made in the name of Rab: The halachah is in agreement with R. Jose!--Who is it [that is referred to by the phrase] 'At the school of Rab it was stated'? R. Huna [of course]; and R. Huna it was who stated that the halachah is not in agreement [with R. Jose].
R. JUDAH STATED: A TUMTUM etc. R. Ammi remarked: What would R. Judah have done with a case like that of the tumtum of Bairi, who, after having been placed upon the operating table and operated upon, begat seven children! And R. Judah?--He could tell you: An enquiry should be made as to the origin of his children.
It was taught: R. Jose son of R. Judah stated that a tumtum must not participate in halizah, since it is possible that on being operated upon he may be found to be a congenital saris. Is everyone then, who is operated upon a male!--It is this that he meant: It is possible that on being operated upon he may be found to be a female; and were he found to be a male, it is even then possible that he might be found to be a congenital saris. What is the practical difference between them?--Raba replied: The practical difference between them is the question of disqualification, where other brothers are in existence, and that of halizah where no other brothers exist.
R. Samuel son of R. Judah said in the name of R. Abba, the brother of R. Judah b. Zabdi, in the name of Rab Judah in the name of Rab: In respect of the hermaphrodite the penalty of stoning is incurred through either of his organs.
An objection was raised: R. Eliezer stated, 'In respect of the hermaphrodite the penalty of stoning is incurred as in the case of a male. This, however, applies only to his male organ; but in respect of his female organ no penalty is incurred'!--He holds the same opinion as the following Tanna. For it was taught: R. Simai stated that in respect of the hermaphrodite the penalty of stoning is incurred through either of his organs. What is R. Simai's reason?--Raba replied: Bar Hamduri has explained it to me as follows: And thou shalt not lie with a male, as well as with womankind. What male is it that is capable of two manners of lying? Obviously the hermaphrodite. And the Rabbis?--Though he is capable of two manners of lying it is nevertheless written in Scripture, With a male. Whence, however, do the Rabbis derive the law concerning an ordinary male?--From And. Whence the prohibition in respect of unnatural intercourse with a woman?--From Woman.
R. Shezbi stated in the name of R. Hisda: It is not in all respects that R. Eliezer maintains that the hermaphrodite is a proper male. Since, were you to say so, [such an animal] would be fit for consecration. And whence is it derived that it may not be consecrated?--From what the Rabbis taught: [A bird] that was covered, set aside [for idolatrous purposes], or worshipped, that was the hire of a harlot or the price of a dog, a tumtum or hermaphrodite, causes the defilement of one's clothes by [contact with one's] oesophagus.--R. Eliezer said: [A bird that was] a tumtum or hermaphrodite does not impart the defilement of clothes through contact with one's oesophagus; for R. Eliezer maintained that wherever male and female were mentioned, the tumtum and hermaphrodite are to be excluded; but [in the case of the sacrifice of a] bird, since in respect of it no mention was made of male or female, the tumtum and hermaphrodite are not to be excluded.
R. Nahman b. Isaac said: We also learned [a similar Baraitha]: R. Eliezer stated: [84a] A hybrid, terefah, one that was extracted through the abdominal wall, the tumtum and the hermaphrodite can neither become sacred nor can they impart sanctity to others; and Samuel explained: They neither become sacred by means of exchange, nor do they impart sanctity [to any other beast] by causing it to become an exchange. This proves [what has been said].
R. ELIEZER STATED THE PENALTY OF STONING IS INCURRED AS [IF HE WERE] A MALE. It was taught: Rabbi related, 'When I went to learn Torah at [the school of] R. Eleazar b. Shammu'a, his disciples combined against me like the cocks of Beth Bukya and did not let me learn more than this single thing in our Mishnah: R. ELIEZER STATED: [FOR COPULATION WITH] AN HERMAPHRODITE THE PENALTY OF STONING IS INCURRED AS [IF HE WERE] A MALE'.