042b - על אלו מומין פרק ששי בכורות דף מב, ע"ב

[the end of Rashi’s comment from the previous amud:] …and Rabbi Shimon holds that we do not say so; rather, it is certainly female. And as for what Rav Chisda said, a tumtum, according to all, is a doubt – he comes to teach us that you should not say that according to the later Sages a tumtum too is a beriah, so that the sanctity of a firstborn would not take effect on any tumtum. Yet Rav Chisda holds that there is a Tanna who does not hold even that it is a doubt: if it urinates from the male place it is male, and if from the female place, female. And all agree with Rav Chisda that sanctity takes effect on a tumtum.^[1]

[…and that Rabbi Shimon] ben Yehuda comes to say that a tumtum is a beriah, a creature of its own, and is not sanctified?^[2]

No: all agree that we are not in doubt whether a tumtum is a beriah; whether it is male or female is what we are in doubt about.

One that urinates from the male place – all agree that it is male.

Where they disagree is one that urinates from the female place: one master holds that we are concerned that perhaps its male organ was turned into its female organ,^[3] and the other master holds that we are not concerned.

Like that which Rabbi Elazar ruled: an animal that urinates from the female place is chullin.^[4]

וכי האי דהורה רבי אילעאי - that is, Rabbi Shimon ben Yehuda holds like this ruling.

חולין - and he says this regarding a firstborn: it is not sanctified, for it is certainly female. And this Rabbi Ilai is an Amora, and is not the one of the beraisa mentioned above in the name of Rabbi Yishmael.

Rabbi Yochanan wondered at it: Who is it that pays no heed to the first Tanna and to Rabbi Yishmael?^[5]

תהי בה ר' יוחנן - [he wondered] about this ruling of Rabbi Ilai.

לא לת"ק ולא לר' ישמעאל - of our Mishnah, who say that a tumtum may be slaughtered neither in the Mikdash nor outside, because it is a doubt; and Rabbi Yishmael disagrees only about the androginos, whose female place counts as a gash.

But let Rabbi Yochanan also say: Who is it that pays no heed to the later Sages? For Rav Chisda said: The dispute is regarding an androginos, but regarding a tumtum all agree that it is a doubt!^[6]

Rabbi Yochanan does not hold like Rav Chisda.

לא ס"ל - Rabbi Yochanan does not hold like Rav Chisda; rather, the later Sages say of the tumtum too that it is a beriah.

If he does not hold like him, let him say: [Rabbi Elazar] spoke in accordance with the later Sages!

אי לא סבירא ליה - why does he wonder? It is Rabbi Ilai who spoke in accordance with the later Sages!

This too is what he is saying: Who abandons two and acts like one?

שבק תרי - the first Tanna and Rabbi Yishmael, and acts like one – the later Sages.

And whom does Rabbi Elazar hold like?

Like that which Reish Lakish said: They said that a tumtum is a doubt only regarding a person, since its male and female organs are in one place; but an animal – if it urinates from the male place it is male, if it urinates from the female place it is female.

הואיל וזכרותו ונקבותו במקום אחד - and one cannot examine them by the urination. But an animal involves no doubt at all, according to all. And what the first Tanna of our Mishnah says, ‘it is not slaughtered,’ he says of one that urinates from the male place, which is certainly sanctified; therefore it is not slaughtered outside, and in the Mikdash too it is not fit to be offered, for it looks like a blemished animal, since it has no [visible] male organ – for in several places we exclude it from being offered: the male, and not a tumtum. And Rabbi Yishmael refers to the androginos, and the later Sages refer to the androginos; but regarding a tumtum all agree that if it urinates from the male place it is male, from the female place, female; and Rabbi Ilai ruled according to all of them.

Rav Oshaya challenged it: But let us be concerned that perhaps its male organ was turned into its female organ!

He said to him: Like whom? Like Rabbi Meir, who is concerned for a minority?^[7]

כר"מ - in astonishment; that is, are we concerned for a lone opinion?

Abaye bar Avin and Rav Chananya bar Avin both said: You may even say [it follows] the Rabbanan: since it changed, it changed.^[8]

אפי' תימא רבנן - we would also object so: since it changed in becoming a tumtum, it changed in that its male organ was turned into its female organ.

Some say: it changed; and some say: it did not change.

ומשני אית דאמר אישתני - that is, there is one who says that we do say ‘since it changed, it changed’ in an animal – namely the first Tanna, who disputes above with Rabbi Shimon ben Yehuda, who is not concerned that it was turned; and Rabbi Elazar holds like Rabbi Shimon.

Shall we say that ‘it changed’ and ‘it did not change’ is a dispute of Tannaim?

לימא - whether we say ‘since it changed’ or we do not say it – is it a dispute of Tannaim?

For it was taught: A tumtum who betrothed – his betrothal is a betrothal; who was betrothed – its betrothal is a betrothal; and he performs chalitzah, and chalitzah is performed with his wife, and yibum is performed with his wife.^[9]

שקדש קדושיו קדושין - stringently; and she needs a get, in case he is male.

נתקדש - its betrothal is a betrothal, and the one who betrothed it is forbidden to the tumtum’s relatives, such as its mother and its sister, in case it is female.

וחולץ - stringently: if there is no other [brother] but him, his yevamah needs chalitzah; but if there is another there, the tumtum does not perform chalitzah, for this Tanna is in doubt whether it is even female.

וחולצין לאשתו - this is a stringency, in case he is male.

ומייבמים את אשתו - either way: if he is male, his brother properly performs yibum; and if it is female, it is merely a woman whom this brother of the tumtum marries. But the tumtum himself does not perform yibum, for he cannot father children, and the verse to establish a name for his brother does not apply to him.

And it was taught in another [beraisa]: The wife of a tumtum undergoes chalitzah but not yibum.

They assumed that all follow Rabbi Akiva, who said: A saris chamah neither performs chalitzah nor yibum.^[10]

מאי לאו דכ"ע כר"ע - who says in Yevamos, chapter Ha’arel (79b): A saris chamah neither performs chalitzah nor yibum, and his wife neither undergoes chalitzah nor yibum, for he never had a time of fitness.

Is it not that they disagree about this: the one who says he performs chalitzah, and chalitzah is performed with his wife, and yibum is performed with his wife does not say ‘since it changed, it changed’; and the one who says she undergoes chalitzah but not yibum says ‘since it changed, it changed’?

ובהא פליגי - the one who says that yibum is performed with his wife either way holds: if he is male, yibum is properly performed, for we do not say that since it changed to become a tumtum it also changed to make him a doubtful saris chamah, so that even if he were torn open and found male he would be a saris – and the wife of a saris does not undergo yibum.

ומ"ד אין מתייבמת סבר אמרינן הואיל ואישתני - to become a tumtum, it changed also to make him doubtfully a saris chamah even if he is found male. Therefore his wife does not undergo yibum, for they would turn out to encounter a forbidden relation: since he is male, his betrothal is valid, and since he is a saris chamah, his wife is not bound to yibum, so she is like a brother’s wife who has children, and whoever performs yibum with her transgresses the prohibition of a brother’s wife. Yet she needs chalitzah, for it is not plain to us that he is a saris, since perhaps he is not a saris; therefore she needs chalitzah.

No: all say ‘since it changed, it changed’; this one is Rabbi Eliezer and that one is Rabbi Akiva.^[11]

לא דכ"ע אמרי שמא אישתני - and we are in doubt whether he is a saris chamah. And the one who says she undergoes yibum is Rabbi Eliezer, who says in chapter Ha’arel (Yevamos 80a): The wife of a saris chamah undergoes yibum, for such are cured in Alexandria of Egypt; therefore either way it is permitted to perform yibum with her. And the one who says she does not undergo yibum follows Rabbi Akiva.

And who is the Tanna [of that beraisa] who follows Rabbi Akiva?

ומאן האי תנא דאית ליה כר"ע - and says she undergoes chalitzah but not yibum.

If you say Rabbi Yehuda – he makes it a definite saris, as we learned: Rabbi Yehuda says: A tumtum that was torn open and found to be male – this one does not perform chalitzah, because he is like a saris!^[12]

סריס ודאי משוי ליה - [he makes] the tumtum [a definite saris], and then even chalitzah should not be needed, for Rabbi Akiva does not require chalitzah for the wife of a saris chamah.

Rather, it is Rabbi Yosi son of Rabbi Yehuda, as it was taught: Rabbi Yosi son of Rabbi Yehuda says: A tumtum does not perform chalitzah, lest he be torn open and found to be a saris chamah.

אלא ר' יוסי בר' יהודה - who says ‘perhaps’; therefore chalitzah is needed, for perhaps he is male and perhaps he is not a saris; and she does not undergo yibum, for perhaps he is male and a saris, and she is not bound to yibum, and [the brother] would turn out to encounter a brother’s wife who has children.

שמא יקרע כו' - he speaks of where there are [other] brothers: he does not perform chalitzah, (and let us be concerned) lest he is a saris chamah; but if there is no other there, he performs chalitzah, and his yevamah is not left released by nothing, for perhaps he is not a saris. Therefore his wife too needs chalitzah, in case he is not a saris, and does not undergo yibum, in case he is a saris.

Is everyone who is torn open found to be male? Is a female not found?

אטו כל דמקרע זכר מישתכח - for he is in doubt only about a saris chamah, and about [its being] female he is not in doubt.

He says perhaps: perhaps he will be torn open and found female; or, if male, perhaps too he will be found a saris chamah.

What is the difference between them?

מאי בינייהו - between Rabbi Yehuda and Rabbi Yosi, regarding a tumtum whose brother died – for both say he does not perform chalitzah.

Rava said:…^[13]

כי פליגי במטיל מים במקום נקבות - Now, what Rav Chisda said above, but regarding a tumtum all agree that it is a doubt, perforce was not said of one that urinates from the male place, for that one is certainly male, but of one that urinates from the female place, and according to the first Tanna; but Rabbi Shimon holds that there is no doubt at all regarding a tumtum, for if it urinates from the female place it is certainly female. And if you ask: how does Rav Chisda know that according to the later Sages it is sanctified out of doubt? Perhaps they hold like Rabbi Shimon, and it is not sanctified at all! One can answer: since the reason they dispute regarding the androginos is that it is a beriah, they cannot be disputing regarding the tumtum, which according to Rav Chisda no Tanna considers a beriah; presumably they agree with the first Tanna regarding the tumtum, that it is sanctified out of doubt, just as Rabbi Yishmael agrees with him. And if you ask: below, in the ninth chapter (Bechoros 57a), Rabbi Shimon ben Yehuda excludes the tumtum and the androginos from maaser beheimah,^[14] because with consecrated offerings ‘the male’ excludes them – a definite male and a definite female – and he learns maaser from consecrated offerings through ‘tachas’ ‘tachas’. What has one to do with the other? With consecrated offerings, [the tumtum] is excluded from the category of ‘male’ because it is a female when it urinates from the female place; but with maaser there is no distinction between male and female! One can answer: Rav Chisda would say, delete ‘tumtum’ from there; and so too Reish Lakish, shortly.

לא אמרו טומטום ספק אלא באדם - He says this according to Rabbi Shimon ben Yehuda, who holds so, and not according to everyone; for according to the first Tanna of the Mishnah it is plain that it is a doubt, since it may be slaughtered neither in the Mikdash nor outside.

Notes

1. 1. These words close Rashi’s comment ות"ק סבר חיישינן שמא נהפכה זכרותו on the previous amud (Bechoros 42a): Rabbi Shimon ben Yehuda does not fear that the organ was turned, and treats an animal that urinates from the female place as a definite female.
2. 2. This ends the question begun on the previous amud: perhaps the first Tanna holds that a tumtum is a doubtful male, sanctified as a firstborn out of doubt, while Rabbi Shimon ben Yehuda holds that it is a beriah, a kind of its own, neither male nor female, and so is not a firstborn. A tumtum is one whose genitals are covered by skin, so its sex is unknown.
3. 3. That is, perhaps its male organ is folded back inside, so that urine emerges at the female place though it is really male (Rashi on the previous amud).
4. 4. That is, it is not sanctified as a firstborn: it is treated as definitely female, and only a male is a bechor.
5. 5. The Mishnah (Bechoros 41a) taught that a tumtum and an androginos may be slaughtered neither in the Mikdash nor outside, being doubtful firstborns; Rabbi Yishmael differs only about the androginos (Rashi). Both, then, treat a tumtum as a doubt, not as chullin.
6. 6. An androginos has both male and female organs. The ‘later Sages’ are the Chachamim of the beraisa on the previous amud (Bechoros 42a), who say that sanctity does not take effect on an androginos. Rav Chisda (Bechoros 41b) limited their dispute to the androginos: all agree that a tumtum is a doubt and is sanctified out of doubt.
7. 7. Rabbi Meir takes account of a minority possibility even where the majority points the other way; the Sages do not. An organ turned inward is such a rare case.
8. 8. ‘Since it changed, it changed’: once its formation departed from the normal and it became a tumtum, its signs cannot be relied on, and we fear that its male organ too was turned into its female organ (Rashi).
9. 9. When a man dies childless, his brother marries the widow (yibum) or releases her through chalitzah. A tumtum, possibly male and possibly female, is treated stringently both ways (Rashi).
10. 10. A saris chamah is one born sterile, who never had a time of fitness. Rabbi Akiva rules (Yevamos 79b) that he neither performs chalitzah nor yibum, and his widow is free of both.
11. 11. Rabbi Eliezer holds that a saris chamah does perform chalitzah and his wife undergoes it, since his condition can be cured (Yevamos 79b; 80a).
12. 12. The Mishnah in Yevamos 81a. Rabbi Yehuda treats a tumtum that was opened and found male as a definite saris; on Rabbi Akiva’s view his widow would then need no chalitzah at all, unlike the beraisa (Rashi).
13. 13. Rava’s answer continues on the next amud (Bechoros 43a).
14. 14. Maaser beheimah, the animal tithe: every tenth newborn animal is sanctified and offered like a shelamim. Rabbi Shimon ben Yehuda (Bechoros 57a) excludes the tumtum and androginos from it, learning the word ‘tachas’ from its use with consecrated offerings.