who has not experienced a moment [of life] in a state of fitness.1 How could this2 be ascertained? — Abaye replied: [By observing whether] when he urinates no arch is formed. What are the causes?3 — That the child's mother baked at noon4 and drank strong5 beer.
R. Joseph said: It must have been such a saris6 of whom I heard Ammi saying. 'He who is afflicted from birth',7 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!8 — 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, 'It9 is to be examined10 three times in eighty days'!11 — Precautions are to be taken in respect of one limb;12 in respect of the entire body13 no such precautions need be taken.14
R. ELIEZER SAID: NOT SO etc. A contradiction may be pointed out: If at the age of twenty he15 did not produce two hairs,16 they17 must bring evidence that he is twenty years of age and he, being confirmed as a saris,18 neither submits to halizah nor performs the levirate marriage. If the woman19 at the age of twenty did not produce two hairs,20 they21 must bring evidence that she is twenty years of age and she, being confirmed as a woman who is incapable of procreation 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!22 Rami b. Dikuli replied in the name Of Samuel: R. Eliezer changed his view.23
The question was raised: From which statement did he withdraw? — Come and hear what was taught: R. Eliezer said. A congenital saris24 submits to halizah, and halizah is arranged for his wife, because cases of such a nature are cured in Alexandria in Egypt.25
R. Eleazar said: As a matter of fact he26 did not change his view at all, but that statement27 was taught in respect [of the age of] punishment.28
It was stated: If a person29 between the age of twelve years and one day30 and that of eighteen years31 ate forbidden fat,32 and after the marks of a saris had appeared, he grew two hairs.33 Rab ruled that the person is deemed to be a saris retrospectively.34 But Samuel ruled [that the person is regarded as] having been a minor at that time.35
R. Joseph demurred against Rab:36 According to R. Meir,37 a woman who is incapable of procreation38 should be entitled to a fine!39 — Abaye replied: She passes from her minority [directly] into adolescence.40 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,41 because no stubborn and rebellious son is tried unless he bears the mark of the pubic hair.42 Nor is a woman who is incapable of procreation tried as a betrothed damsel43 because from her minority she passes [directly] into adolescence.44
R. Abbahu stated: On [the basis of] the marks of a saris, of a woman incapable of procreation, and of an eight-[month] child45 no decision is made46 until they attain the age of twenty.47 Is, however, an eight-[month] child viable? Surely it was taught: An eight-month child is like a stone,48 and it is forbidden to move him;49 only his mother may bend over him and nurse him
Original footnotes renumbered.
- I.e., who was born with defective organs.
- That a child was a saris from birth.
- Of congenital impotency.
- The heat of the oven combined with the heat of the day obviously affected the generative organs of the embryo.
- Others, 'pale', 'diluted'.
- The congenital eunuch or 'saris by nature' spoken of in our Mishnah.
- Lit., 'from his mother's bowels'.
- Between the periods of his early and present impotency. And since he was possessed of his manly powers even if only for a short time, bow could he (v. our Mishnah) be regarded as a 'saris by nature'?
- The firstborn of a beast afflicted with a serious blemish which renders it unfit for the altar.
- To ascertain whether the blemish is a permanent one. If it was only a passing affliction it does not affect the legal fitness of the animal.
- At the beginning, middle and end of the period. Only where the blemish remained for the full eighty days is it regarded as permanent. If no examination was made in the middle of the period mentioned, the blemish cannot be deemed to be a permanent since it is possible that it had disappeared for some time and reappeared again V. Bek. 38b. Why, then, is the middle period disregarded in the case of the saris?
- The eye, for instance, which was the limb affected in the case cited.
- The impotency of the saris is an affliction affecting his body as a whole.
- It is unlikely that such a defect should appear, disappear and reappear again.
- A levir whose duty it is to contract levirate marriage or to submit to halizah.
- The marks of puberty.
- The relatives of the widow who wish to exempt her from the halizah and the marriage.
- By a display of the required symptoms.
- The widow whose husband had died without issue.
- The marks of puberty.
- The levir's relatives. Cf. supra note 9, mutatis mutandis.
- Nid. 47b. Now, the case spoken of here is that of a congenital saris and yet R. Eliezer stated that he is subject neither to halizah nor to the levirate marriage, which is in direct contradiction to his statement in our Mishnah!
- The two statements were made at an earlier and later period respectively.
- V. supra p. 538. n. 11.
- As this Baraitha agrees with our Mishnah and, in addition, contains also a reason for its statement, based on actual experience. it is reasonable to assume that R. Eliezer withdrew from his other view contained in the Baraitha of Niddah.
- R. Eliezer.
- Supra, that the age of a male is twenty, in agreement with Beth Hillel, and that that of a female is eighteen, in agreement with Beth Shammai.
- At the ages stated males and females respectively, emerging from their state of minority and entering that of majority, become subject to all legal obligations and penalties. The statement has no reference at all to halizah or the levirate marriage.
- The reference is to a female though the masc. gender 'saris' is used. The age of twelve years and one day is applicable to females only.
- Below this age a girl is regarded as a minor.
- This will be according to R. Eliezer, supra.
- Or committed any other transgression. The eating of forbidden fat, [H] is invariably taken as the example of a punishable offence. Cf. Golds. a.l.
- The marks of puberty.
- From the age of twelve years and one day. Despite the absence of the hairs until after the age of eighteen. and their subsequent appearance. the girl is regarded as having passed into her majority at the earlier age of twelve years and one day. and consequently subject from that time to all legal penalties, the delay in the emergence of her marks of puberty being attributed to her mere impotence.
- Between the ages of twelve and eighteen. Samuel holds that majority sets in at the latter age only when the girl's impotency is definitely established.
- Who regards a girl, who was only subsequently found to be a saris, as having been a saris and consequently also of age from the moment she was twelve years and one day old.
- Who exempts the seducer of a minor from the payment of the fine prescribed in Deut. XXII, 29.
- The seducer of whom is also exempt from the fine mentioned (supra note 2) on the ground that, as she did not produce the required hairs, she was regarded at the time as a minor. V. Keth. 35b.
- Because, since it was later established that she was sterile, she should be regarded (cf. supra note 1) as having been sterile, and so also of age, retrospectively.
- The former age is twelve years and one day; the latter is twelve and a half plus one day. In the intervening age a girl is described as [H] damsel or maiden; and it is during this period ([H]) that she is entitled to the fine mentioned. The sterile woman does in fact become of age retrospectively, as Rab laid down, but she assumes the status of the adolescent woman who is not entitled to the fine.
- Cf. Deut. XXI, 18ff.
- Lit., 'lower beard'.
- Who has been outraged (v. Deut. XXII, 23ff).
- Cf. supra n. 5.
- Born in the eighth month of conception. who, as a rule, is not viable.
- As to whether in the case of the former they are impotent and of age, and in the case of the latter whether he is viable.
- Between the age of twelve and this age the former are regarded as minors until they have produced two pubic hairs, if these appear before they were twenty; and if these were not produced at twenty their majority begins from the age of twelve. In the case of the child he cannot be regarded as viable before he has completed the twentieth year of his life.
- Obviously because he is not viable.
- On the Sabbath when only such objects may be moved as were intended to be used on that day. The moving of a stone is forbidden.
in order to avert danger!1 — Here2 we are dealing with one whose marks3 have not4 been developed.5 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.6 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 one7 only his [birth] was somewhat delayed.8
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,9 in accordance with whose [view did he act]? [Was it] in accordance with that of Rabbi who maintains that [birth] may be delayed!10 — 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 human11 child that lingers for thirty days can not be regarded as a miscarriage.12
Our Rabbis taught: Who is a congenital saris?13 Any person who is twenty years of age and has not produced two pubic hairs.14 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:15 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:15 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? — Any woman who is twenty years of age and has not produced two pubic hairs.14 And even if she produces them afterwards she is deemed to be a woman incapable of procreation in all respects. And these are her characteristics: She has no breasts and suffers pain during copulation. R. Simeon b. Gamaliel said:15 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.16 Where two hairs were produced17 all agree that impotency cannot be established unless all characteristics18 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!19 — No; R. Nahman had some stray hairs.20
THE SARIS NEITHER SUBMITS TO HALIZAH NOR CONTRACTS THE LEVIRATE MARRIAGE, AND SO ALSO A WOMAN WHO IS INCAPABLE OF PROCREATION etc. The saris was mentioned in the same way as the woman who is incapable of procreation; as the woman's incapacity is due to an act of21 heaven so must that of the saris be an act21 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.22
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 he23 cohabited with her; another man, however, does not;24
Original footnotes renumbered.
- To the mother and the child. The latter might otherwise die of starvation before his time, and the former might contract serious illness through the accumulation of superfluous milk in her breasts. V. Tosef. Shab. XVI. Now, since the child, because he is not viable, is regarded as a stone (v. p. 545. n. 13), how could he ever attain the age of twenty?
- In the cited Baraitha.
- Of viability. such as hair and nails.
- So Alfasi, BaH and some MSS. Cur. edd. omit, 'not' referring to R. Abbahu's statement.
- Where the marks, however, are developed. as is the case in the Baraitha cited, the child may be viable.
- Tosef. Shab. XVI. Lit., 'concerning him', whether he is an eight-month child.
- A child whose development is completed in the seventh month is viable.
- R. Abbahu, supra, referring to such a case, teaches that, even according to Rabbi, no definite decision can be arrived at before the child has grown up and attained the age of twenty.
- Assuming, as he did, that it remained in utero three months after the nine-monthly period.
- Would he agree with an individual, against the opinion of a majority?
- In the case of an animal the period is eight days.
- Supra 36b, Shab. 135b, Nid. 44b. The child is assumed to be a seven-month one whose birth had been delayed and who is consequently viable.
- V. supra p. 538, n. 11.
- The usual marks of puberty.
- In reply to the question 'who is a saris?'
- Lit., 'by one of them'.
- Elijah Wilna deletes 'In the beard' of cur. edd. [The reference will be accordingly to an emergence of hairs after the age of twenty, for had they appeared earlier, he would no longer be regarded as a saris even in the face of all other characteristics of a saris, v. supra p. 543. Tosaf., however, retains the reading of our text and consequently draws a distinction between hairs of the beard and on any other part of the body. The former in themselves, unlike the latter, are not sufficient to establish potency. V. Tosaf. s.v. [H].
- Of a saris.
- Since the absence of one characteristic satisfied him, contrary to the opinion of R. Johanan supra.
- V. supra p. 547, n. 5. [H] pl. of [H].
- Lit., 'by the hands of'.
- The congenital eunuch or the saris by nature. Cf. supra p. 538. n. 11.
- The levir to whom, as his brother's wife, she is forbidden under the penalty of kareth.
- Cause her to be disqualified.