Is there a difference in the law of firstborns between tumtum and adroginus? Can one say that tumtum is according to all opinions a case of doubt whereas adroginus is a subject of debate – those who view is as doubt and those who view it as its own creature and not male or female and therefore excluded from firstborn laws?
This week’s learning is sponsored for the merit and safety of Haymanut (Emuna) Kasau, who was 9 years old when she disappeared from her home in Tzfat two years ago, on the 16th of Adar, 5784 (February 25, 2024), and whose whereabouts remain unknown.
This week’s learning is dedicated of the safety of our nation, the soldiers and citizens of Israel, and for the liberation of the Iranian people. May we soon see the realization of “ליהודים היתה אורה ושמחה וששון ויקר”.
This week’s learning is sponsored for the merit and safety of Haymanut (Emuna) Kasau, who was 9 years old when she disappeared from her home in Tzfat two years ago, on the 16th of Adar, 5784 (February 25, 2024), and whose whereabouts remain unknown.
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This week’s learning is sponsored for the merit and safety of Haymanut (Emuna) Kasau, who was 9 years old when she disappeared from her home in Tzfat two years ago, on the 16th of Adar, 5784 (February 25, 2024), and whose whereabouts remain unknown.
This week’s learning is dedicated of the safety of our nation, the soldiers and citizens of Israel, and for the liberation of the Iranian people. May we soon see the realization of “ליהודים היתה אורה ושמחה וששון ויקר”.
This week’s learning is sponsored for the merit and safety of Haymanut (Emuna) Kasau, who was 9 years old when she disappeared from her home in Tzfat two years ago, on the 16th of Adar, 5784 (February 25, 2024), and whose whereabouts remain unknown.
Bekhorot 42
אַלְּמָה תַּנְיָא: ״הַזָּכָר״ — וְלֹא טוּמְטוּם וְאַנְדְּרוֹגִינוֹס! סְמִי מִיכָּן טוּמְטוּם.
Why, then, is it taught in a baraita that the verse: “Then your valuation shall be for the male” (Leviticus 27:3), includes one whose status as a male is certain but not a tumtum or a hermaphrodite? The Gemara answers: Omit from this baraita the mention of a tumtum, as it is referring only to a hermaphrodite, which is a distinct entity.
תָּא שְׁמַע: יָכוֹל לֹא יְהֵא בְּעֵרֶךְ אִישׁ, אֲבָל יְהֵא בְּעֵרֶךְ אִשָּׁה? תַּלְמוּד לוֹמַר: ״הַזָּכָר… אִם נְקֵבָה״, וְלֹא טוּמְטוּם וְאַנְדְּרוֹגִינוֹס! סְמִי מִיכָּן טוּמְטוּם.
The Gemara suggests: Come and hear the continuation of that baraita: One might have thought that these shall not be valuated according to the valuation of a man, but they shall be valuated according to the valuation of a woman. Therefore, the verse states: “The male,” and in the following verse it states: “And if she is a female, then your valuation shall be thirty shekels” (Leviticus 27:4), indicating only one whose status as a male or female is certain, but not a tumtum or a hermaphrodite, which are categorized as neither male nor female. The Gemara again answers: Omit from this baraita the mention of a tumtum, as it is referring only to a hermaphrodite.
תָּא שְׁמַע: ״אִם זָכָר אִם נְקֵבָה״ — זָכָר וַדַּאי נְקֵבָה וַדָּאִית, וְלֹא טוּמְטוּם וְאַנְדְּרוֹגִינוֹס. סְמִי מִיכָּן טוּמְטוּם.
The Gemara suggests: Come and hear a baraita discussing the peace offering, with regard to which it states: “Whether male or female” (Leviticus 3:1). This indicates: Only a definite male or a definite female, but not a tumtum or a hermaphrodite. Yet again the Gemara responds: Omit from this baraita the mention of a tumtum.
תָּא שְׁמַע: ״הַזָּכָר״ — וְלֹא נְקֵבָה. כְּשֶׁהוּא אוֹמֵר לְמַטָּהּ ״זָכָר״, שֶׁאֵין תַּלְמוּד לוֹמַר; מָה תַּלְמוּד לוֹמַר? לְהוֹצִיא טוּמְטוּם וְאַנְדְּרוֹגִינוֹס. סְמִי מִיכָּן טוּמְטוּם.
The Gemara suggests: Come and hear a baraita: It states with regard to a burnt offering from cattle: “A male” (Leviticus 1:3), from which it can be inferred: But not a female. When it says below, with regard to a burnt offering from sheep: “A male” (Leviticus 1:10), a second time, it is difficult to understand, as there is no need for the verse to state this. Why must the verse state “a male” again? This serves to exclude a tumtum and a hermaphrodite, which are disqualified as burnt offerings. The Gemara answers: Omit from this baraita the mention of a tumtum.
תָּא שְׁמַע: הַנֶּעֱבָד, וְהַמּוּקְצֶה, וְהָאֶתְנַן, וְהַמְּחִיר, וְטוּמְטוּם וְאַנְדְּרוֹגִינוֹס — כּוּלָּן מְטַמְּאִין בְּגָדִים אַבֵּית הַבְּלִיעָה.
The Gemara suggests: Come and hear a baraita discussing the halakhot of ritual impurity imparted by a bird in the throat: Any bird that was not slaughtered in the proper manner, i.e., in its neck with a knife, has the status of a carcass. This carcass renders the one who eats it impure when it is in his throat. Bird offerings, which are killed by pinching the nape of the neck with a fingernail, are the exception to this principle, and they do not impart impurity. With regard to a bird that is worshipped as a deity, or one set aside for idol worship, or one given as payment to a prostitute, or one that was given as the price of a dog (see Deuteronomy 23:19), and similarly with regard to a bird that is a tumtum or a hermaphrodite, if one killed any of them by pinching, they are ritually impure, as they are disqualified as offerings, and the pinching does not purify them. Therefore, they all render a person and the garments he is wearing ritually impure if an olive-bulk of them comes into contact with the throat while eating.
רַבִּי אֱלִיעֶזֶר אוֹמֵר: טוּמְטוּם וְאַנְדְּרוֹגִינוֹס אֵין מְטַמְּאִין בְּגָדִים אַבֵּית הַבְּלִיעָה, שֶׁהָיָה רַבִּי אֱלִיעֶזֶר אוֹמֵר: כׇּל מָקוֹם שֶׁנֶּאֱמַר ״זָכָר וּנְקֵבָה״ אַתָּה מוֹצִיא טוּמְטוּם וְאַנְדְּרוֹגִינוֹס מִבֵּינֵיהֶם.
Rabbi Eliezer says: If one pinched the neck of a tumtum or a hermaphrodite, it does not render the person and the garments he is wearing ritually impure when they are in the throat, as they are in fact fit to be sacrificed. As Rabbi Eliezer would say: Wherever it is stated explicitly in the Torah: “Male,” and: “Female,” you should exclude a tumtum and a hermaphrodite from among them, as their status is uncertain. This applies to animal offerings, with regard to which the Torah states “male” and “female.”
וְעוֹף, הוֹאִיל וְלֹא נֶאֱמַר בּוֹ ״זָכָר וּנְקֵבָה״, אֵין אַתָּה מוֹצִיא טוּמְטוּם וְאַנְדְּרוֹגִינוֹס מִבֵּינֵיהֶם! סְמִי מִיכָּן טוּמְטוּם.
But in the case of a bird offering, since “male” and “female” are not stated with regard to it, but simply doves and pigeons are stated with regard to it, you do not exclude a tumtum and a hermaphrodite from among them, as they are fit for the altar. Now if a tumtum is considered either definitely a male or a female, then why does the first tanna disqualify it from being sacrificed? The Gemara again replies: Omit from this baraita the mention of a tumtum.
תָּא שְׁמַע: רַבִּי אֶלְעָזָר אוֹמֵר: הַטְּרֵיפָה, וְהַכִּלְאַיִם, וְיוֹצֵא דּוֹפֶן, טוּמְטוּם וְאַנְדְּרוֹגִינוֹס — לֹא קְדוֹשִׁים וְלֹא מַקְדִּישִׁין.
The Gemara suggests: Come and hear that Rabbi Elazar says: An animal with a condition that will cause it to die within twelve months [tereifa], and prohibited diverse kinds of livestock, and an animal born by caesarean section, and an animal that is a tumtum or a hermaphrodite do not become consecrated and do not render another animal consecrated in their place.
וְאָמַר שְׁמוּאֵל: לֹא קְדוֹשִׁים בִּתְמוּרָה, וְלֹא מַקְדִּישִׁין לַעֲשׂוֹת תְּמוּרָה! סְמִי מִיכָּן טוּמְטוּם.
And Shmuel says in explanation: They do not become consecrated by substitution, i.e., if one sought to substitute one of these animals for a sacrificial animal, it does not become sacred. And if one of these was born to a sacrificial animal, they do not render a non-sacred animal consecrated in a case where one wanted to render it a substitute for them. And if a tumtum is either a male or female, why would it not become consecrated and render another animal consecrated? The Gemara answers: Omit from this baraita the mention of a tumtum.
תָּא שְׁמַע: רַבִּי אֶלְעָזָר אוֹמֵר: חֲמִשָּׁה לֹא קְדוֹשִׁים וְלֹא מַקְדִּישִׁין, וְאֵלּוּ הֵן: הַטְּרֵיפָה, וְהַכִּלְאַיִם, וְיוֹצֵא דּוֹפֶן, וְטוּמְטוּם, וְאַנְדְּרוֹגִינוֹס. וְכִי תֵּימָא הָכָא נָמֵי סְמִי מִיכָּן טוּמְטוּם — הָווּ לְהוּ אַרְבָּעָה! אַפֵּיק טוּמְטוּם, וְעָיֵיל יָתוֹם.
The Gemara suggests: Come and hear a slightly different version of that baraita. Rabbi Elazar says: There are five types of animals that do not become consecrated and do not render another animal consecrated, and they are: A tereifa, and prohibited diverse kinds of livestock, and an animal born by caesarean section, and an animal that is a tumtum, and a hermaphrodite. And if you would say: Here too, omit from this baraita a tumtum, then there are only four types of animals listed in the baraita. The Gemara answers: Remove the mention of a tumtum and in its place insert an orphan, i.e., an animal born after the death of its mother, which is also disqualified as a sacrifice.
לֵימָא כְּתַנָּאֵי? רַבִּי אִילְעַאי אוֹמֵר מִשּׁוּם רַבִּי יִשְׁמָעֵאל: אַנְדְּרוֹגִינוֹס בְּכוֹר הוּא וּמוּמוֹ עִמּוֹ, וַחֲכָמִים אוֹמְרִים: אֵין קְדוּשָּׁה חָלָה עָלָיו. רַבִּי שִׁמְעוֹן בֶּן יְהוּדָה אוֹמֵר מִשּׁוּם רַבִּי שִׁמְעוֹן: הֲרֵי הוּא אוֹמֵר ״הַזָּכָר״, וְכׇל מָקוֹם שֶׁנֶּאֱמַר ״זָכָר״ אֵינוֹ אֶלָּא לְהוֹצִיא טוּמְטוּם וְאַנְדְּרוֹגִינוֹס.
The Gemara suggests: Let us say that this question of whether a tumtum is a distinct entity or is definitely either a male or female is the subject of a dispute between tanna’im. As it is taught in a baraita that Rabbi Ilai says in the name of Rabbi Yishmael: A hermaphrodite is a firstborn, and it comes with its blemish; and the Rabbis say: It is not imbued with sanctity. Rabbi Shimon ben Yehuda says in the name of Rabbi Shimon: The verse states: “Males” (Deuteronomy 15:19), and wherever it is stated: Male,” this serves to exclude only a tumtum and a hermaphrodite. Since according to Rabbi Shimon ben Yehuda it is necessary for a verse to exclude a tumtum, like a hermaphrodite, from the category of a male, evidently in his opinion a tumtum is not considered to be one whose status as a male is uncertain but a distinct entity.
וְכִי תֵּימָא: סְמִי מִיכָּן טוּמְטוּם, רַבִּי שִׁמְעוֹן בֶּן יְהוּדָה הַיְינוּ רַבָּנַן! אֶלָּא לָאו טוּמְטוּם אִיכָּא בֵּינַיְיהוּ, דְּתַנָּא קַמָּא סָבַר: אֵין קְדוּשָּׁה חָלָה עָלָיו אַאַנְדְּרוֹגִינוֹס, אֲבָל טוּמְטוּם סְפֵיקָא הוּא וְקָדוֹשׁ מִסְּפֵיקָא, וַאֲתָא רַבִּי שִׁמְעוֹן
The Gemara analyzes this baraita: And if you would say: Here too, omit from this baraita a tumtum, then the opinion of Rabbi Shimon ben Yehuda is the same as that of the Rabbis, as they too maintain that a hermaphrodite is not sacred. Rather, is it not that the difference between them is with regard to the status of a tumtum, as the first tanna, i.e., the Rabbis, holds: It is not imbued with sanctity, and they are referring specifically to a hermaphrodite, which was the subject of Rabbi Ilai’s statement, but a tumtum is an uncertain case, and therefore it is sacred due to uncertainty. And Rabbi Shimon
בֶּן יְהוּדָה לְמֵימַר: טוּמְטוּם בְּרִיָּה הוּא וְלֹא קָדוֹשׁ! לָא, דְּכוּלֵּי עָלְמָא טוּמְטוּם בִּבְרִיָּה לָא מְסַפְּקָא, זָכָר וּנְקֵבָה הוּא דִּמְסַפְּקָא.
ben Yehuda comes to say: A tumtum is not of uncertain status, but a distinct entity, and it is not sacred at all. The Gemara responds: No, everyone agrees with regard to the statement that a tumtum is a distinct entity that there is no doubt that this is incorrect. Where there is doubt is with regard to whether it is a male or a female.
מֵטִיל מַיִם בִּמְקוֹם זַכְרוּת — דְּכוּלֵּי עָלְמָא לָא פְּלִיגִי דְּזָכָר הוּא, כִּי פְּלִיגִי בְּמֵטִיל מַיִם בְּמָקוֹם נַקְבוּת: מָר סָבַר חָיְישִׁינַן שֶׁמָּא נֶהֶפְכָה זַכְרוּתוֹ לְנַקְבוּתוֹ, וּמַר סָבַר לָא חָיְישִׁינַן. כִּי הָא דְּהוֹרָה רַבִּי אֶלְעָזָר: בִּבְהֵמָה מֵטִיל מַיִם בְּמָקוֹם נַקְבוּת — חוּלִּין.
In addition, in a case where the tumtum urinates from the place of the male sex organ, then everyone agrees that it is a male. When they disagree is in the case of a tumtum that urinates from the place of the female sex organ. One Sage, the Rabbis, holds that we are concerned that perhaps its male sex organ was inverted toward its female sex organ; therefore, it is of uncertain status. And one Sage, Rabbi Shimon ben Yehuda, holds that we are not concerned about this possibility; rather, it is definitely a female. And Rabbi Shimon ben Yehuda maintains in accordance with that which Rabbi Elazar ruled: With regard to a firstborn animal that urinates from the place where the female sex organ is found, it is non-sacred, as it is certainly a female.
תָּהֵי בַּהּ רַבִּי יוֹחָנָן: מַאן דְּלָא חָשׁ לְתַנָּא קַמָּא וּלְרַבִּי יִשְׁמָעֵאל? וְלֵימָא רַבִּי יוֹחָנָן נָמֵי: מַאן דְּלָא חָשׁ לְרַבָּנַן בָּתְרָאֵי? דְּאָמַר רַב חִסְדָּא: מַחֲלוֹקֶת בְּאַנְדְּרוֹגִינוֹס, אֲבָל בְּטוּמְטוּם — דִּבְרֵי הַכֹּל סְפֵיקָא!
Rabbi Yoḥanan wondered about this ruling of Rabbi Elazar: Who is the Sage who is not concerned about the opinion of the first tanna in the mishna and about the opinion of Rabbi Yishmael, who maintain that a tumtum is a case of uncertainty? The Gemara asks: And let Rabbi Yoḥanan also say: Who is this who is not concerned about the opinion of the latter Rabbis in the mishna, as Rav Ḥisda says: This dispute refers to a hermaphrodite; but with regard to a tumtum, everyone agrees that it is an uncertain case.
רַבִּי יוֹחָנָן לָא סְבִירָא לֵיהּ דְּרַב חִסְדָּא, אִי לָא סְבִירָא לֵיהּ, לֵימָא הוּא דְּאָמַר כְּרַבָּנַן בָּתְרָאֵי? הָכִי נָמֵי קָאָמַר: מַאן שָׁבֵיק תְּרֵי וְעָבֵיד כְּחַד!
The Gemara explains that Rabbi Yoḥanan does not hold in accordance with that statement of Rav Ḥisda; rather, he maintains that according to the latter Rabbis a tumtum is a distinct entity. The Gemara asks: If Rabbi Yoḥanan does not hold in accordance with Rav Ḥisda, why did he wonder about Rabbi Elazar’s ruling? Let him say that Rabbi Elazar said his opinion in accordance with the opinion of the latter Rabbis. The Gemara answers: That is indeed what he is saying: Who is the Sage who leaves aside the opinion of two Sages, the first tanna and Rabbi Yishmael, and acts in accordance with one opinion, the latter Rabbis?
וְרַבִּי אֶלְעָזָר כְּמַאן סָבְרַהּ? כִּי הָא דְּאָמַר רֵישׁ לָקִישׁ: לֹא אָמְרוּ טוּמְטוּם סָפֵק אֶלָּא בְּאָדָם, הוֹאִיל וְזַכְרוּתוֹ וְנַקְבוּתוֹ בְּמָקוֹם אֶחָד, אֲבָל בְּהֵמָה — מֵטִיל מַיִם בְּמָקוֹם זַכְרוּת זָכָר, מֵטִיל מַיִם בְּמָקוֹם נַקְבוּת נְקֵבָה.
The Gemara asks: And Rabbi Elazar, in accordance with whose opinion does he hold? The Gemara answers that he holds in accordance with that which Reish Lakish says: The Sages said that the halakhic status of a tumtum is an uncertain case only with regard to a person, since the male sex organ and the female sex organ are in one place, i.e., a man and a woman urinate from the same area of the body. Since that area is concealed in the case of a tumtum, its status is uncertain. But with regard to a tumtum animal, there is no uncertainty whether it is a male or a female, as the genitals of a male and a female are not found in the same place. Rather, if it urinates from the place of the male sex organ, it is a male; if it urinates from the place of the female sex organ, it is a female.
מַתְקֵיף לַהּ רַב אוֹשַׁעְיָא: וְלֵיחוּשׁ שֶׁמָּא נֶהֶפְכָה זַכְרוּתוֹ לְנַקְבוּתוֹ! אֲמַר לֵיהּ: כְּמַאן? כְּרַבִּי מֵאִיר דְּחָיֵישׁ לְמִיעוּטָא?!
Rav Oshaya objects to this: And let us be concerned that perhaps its male sex organ was turned round to the place of its female sex organ. Abaye said to him: In accordance with whose opinion do you raise this objection? Is it in accordance with the opinion of Rabbi Meir, who is concerned about the minority of cases? The halakha is not in accordance with the opinion of Rabbi Meir, and therefore one should follow the majority of animals, to whom this does not occur.
אַבָּיֵי בַּר אָבִין וְרַב חֲנַנְיָא בַּר אָבִין דְאָמְרִי תַּרְוַיְיהוּ: אֲפִילּוּ תֵּימָא רַבָּנַן, הוֹאִיל וְאִישְׁתַּנִּי אִישְׁתַּנִּי. אִית דְּאָמַר אִישְׁתַּנִּי, וְאִית דְּאָמַר לָא אִישְׁתַּנִּי.
Abaye bar Avin and Rav Ḥananya bar Avin both say: You may even say that Rav Oshaya’s objection is in accordance with the opinion of the Rabbis, who are not concerned about a minority. The reason is that since in this case, the animal has changed in that it is different from typical animals, as it is a tumtum, perhaps it is also changed with regard to its male sex organ being inverted toward the female sex organ. If so, the Sages disagree with regard to this principle: There are those who say that since it has changed, it has changed, and there are those who say that the claim that since it has changed, it has changed is not accepted.
לֵימָא אִישְׁתַּנִּי וְלָא אִישְׁתַּנִּי תַּנָּאֵי? דְּתַנְיָא: טוּמְטוּם שֶׁקִּידֵּשׁ — קִדּוּשָׁיו קִדּוּשִׁין, נִתְקַדֵּשׁ — קִדּוּשָׁיו קִדּוּשִׁין.
The Gemara suggests: Let us say that the question of whether an animal that has changed in one respect has changed in a different respect, or whether it has not changed, is the subject of a dispute between tanna’im. As it is taught in a baraita: With regard to a tumtum who betrothed a woman, the betrothal is considered a betrothal, due to uncertainty, as the tumtum might be a male; and similarly, if the tumtum was betrothed by a man, the betrothal is deemed a betrothal due to uncertainty, as the tumtum might be a female.
וְחוֹלֵץ, וְחוֹלְצִין לְאִשְׁתּוֹ, וּמְיַבְּמִים לְאִשְׁתּוֹ. וְתַנְיָא אִידַּךְ: אֵשֶׁת טוּמְטוּם חוֹלֶצֶת וְלֹא מִתְיַיבֶּמֶת.
The baraita continues: And if the brother of the tumtum died childless, and there is no other brother who can perform levirate marriage with the widow, the tumtum performs ḥalitza, i.e., his brother’s widow removes his shoe, as the tumtum might be a male, and she would require ḥalitza to release her from the levirate bond. And if the tumtum died, one of the brothers of the tumtum performs ḥalitza with the wife of the tumtum, or enters into levirate marriage with the wife of the tumtum, in case the tumtum was a male. And it is taught in another baraita: The wife of a tumtum performs ḥalitza and does not enter into levirate marriage.
סַבְרוּהָ, דְּכוּלֵּי עָלְמָא כְּרַבִּי עֲקִיבָא, דְּאָמַר: סְרִיס חַמָּה לֹא חוֹלֵץ וְלֹא מְיַיבֵּם.
With regard to these two baraitot, the Sages assumed that everyone holds in accordance with the opinion of Rabbi Akiva, who says: A eunuch whose condition is caused naturally, i.e., one who was entirely lacking in sexual capacity from birth, does not perform ḥalitza and does not enter into levirate marriage with his sister-in-law, as he is not included in the mitzva of levirate marriage. Likewise, if he died his brothers do not perform ḥalitza with his wife, and they may not enter into levirate marriage with her, as she is forbidden to them as a brother’s wife who does not require levirate marriage.
מַאי לָאו בְּהָא קָמִיפַּלְגִי, דְּמַאן דְּאָמַר חוֹלֵץ, וְחוֹלְצִין לְאִשְׁתּוֹ וּמְיַבְּמִים אֶת אִשְׁתּוֹ, לָא אָמְרִינַן הוֹאִיל וְאִישְׁתַּנִּי אִישְׁתַּנִּי;
Based on this assumption, the Gemara suggests: What, is it not that the two baraitot disagree about this, that the one who says that a tumtum performs ḥalitza and one of the brothers performs ḥalitza with the wife of the tumtum or enters into levirate marriage with the wife of the tumtum holds that we do not say that since this tumtum has changed from an average person, he might also have changed in that he is a eunuch whose condition is caused naturally, and therefore the brothers would be prohibited from entering into levirate marriage with the wife? Rather, if the tumtum is a male, it is assumed that he is capable of fathering children, and consequently his wife requires levirate marriage.
וּמַאן דְּאָמַר חוֹלֶצֶת וְלֹא מִתְיַיבֶּמֶת, אָמְרִינַן הוֹאִיל וְאִישְׁתַּנִּי אִישְׁתַּנִּי?
And the one who says that the wife of a tumtum performs ḥalitza and does not enter into levirate marriage maintains that we say that since this person has changed, he has changed, i.e., the possibility that he might be a eunuch whose condition is caused naturally is considered, and therefore his wife may not enter into levirate marriage.
לָא, דְּכוּלֵּי עָלְמָא אָמְרִינַן הוֹאִיל וְאִישְׁתַּנִּי אִישְׁתַּנִּי, הָא רַבִּי אֱלִיעֶזֶר, וְהָא רַבִּי עֲקִיבָא.
The Gemara responds: No; everyone agrees that we say that since this person has changed, he has changed, and there is a concern that he might be a eunuch whose condition is caused naturally. Rather, the difference between the rulings is that this baraita, which permits the wife of the tumtum to enter levirate marriage, is in accordance with the opinion of Rabbi Eliezer, who disagrees with Rabbi Akiva and maintains that levirate marriage may be performed with the wife of a eunuch whose condition is caused naturally, and that baraita, which prohibits levirate marriage, is in accordance with the opinion of Rabbi Akiva, that the brothers of a eunuch whose condition is caused naturally do not enter into levirate marriage with the wife of the tumtum.
וּמַאן תַּנָּא אַלִּיבָּא דְּרַבִּי עֲקִיבָא? אִילֵימָא רַבִּי יְהוּדָה — הָא וַדַּאי סָרִיס מְשַׁוֵּי לֵיהּ!
The Gemara asks: And who is the tanna who holds in accordance with the opinion of Rabbi Akiva that the wife of a eunuch whose condition is caused naturally does not require levirate marriage, and yet he maintains that the wife of a tumtum must perform ḥalitza? If we say it is Rabbi Yehuda, this cannot be, as in his opinion even if the genitals of a tumtum were revealed and he was found to be a male, he deems him like a definite eunuch whose condition is caused naturally, and therefore his wife does not require ḥalitza at all.
דִּתְנַן, רַבִּי יְהוּדָה אוֹמֵר: טוּמְטוּם שֶׁנִּקְרַע וְנִמְצָא זָכָר — הֲרֵי זֶה לֹא יַחְלוֹץ, מִפְּנֵי שֶׁהוּא כְּסָרִיס!
As we learned in a mishna (Yevamot 81a) that Rabbi Yehuda says: With regard to a tumtum who was torn open so that his genitals were exposed, and he was found to be a male, he must not perform ḥalitza, because he is treated like a eunuch whose condition is caused naturally. Just as this tumtum does not perform ḥalitza, so too, his widow does not require ḥalitza.
אֶלָּא רַבִּי יוֹסֵי בְּרַבִּי יְהוּדָה הִיא, דְּתַנְיָא: רַבִּי יוֹסֵי בְּרַבִּי יְהוּדָה אוֹמֵר: טוּמְטוּם לֹא חוֹלֵץ, שֶׁמָּא יִקָּרַע וְיִמָּצֵא סָרִיס חַמָּה.
Rather, it is the opinion of Rabbi Yosei, son of Rabbi Yehuda, who maintains that if a tumtum was torn open and he was found to be a male, he is considered as a matter of uncertainty to be a eunuch whose condition is caused naturally, and consequently his wife requires ḥalitza. As it is taught in a baraita that Rabbi Yosei, son of Rabbi Yehuda, says: A tumtum does not perform ḥalitza with the wife of his late, childless brother if there are other brothers to perform ḥalitza, as perhaps the skin covering his genitals will be torn open and he will be found to be a eunuch whose condition is caused naturally, and the widow would not be released from the levirate bond by his ḥalitza. According to this opinion, it is not certain that a tumtum would be found to be a eunuch whose condition is caused naturally.
אַטּוּ כֹּל דְּמִיקְּרַע זָכָר מִשְׁתְּכַח, נְקֵבָה לָא מִשְׁתְּכַח? שֶׁמָּא קָאָמַר, שֶׁמָּא יִקָּרַע וְיִמָּצֵא נְקֵבָה.
With regard to the opinion of Rabbi Yosei, son of Rabbi Yehuda, the Gemara asks: Why does this individual not perform ḥalitza due only to the possibility that he will be found to be a eunuch whose condition is caused naturally? Is that to say that every tumtum whose skin was torn is found to be a male and is not found to be a female? The Gemara explains that Rabbi Yosei, son of Rabbi Yehuda, said his opinion in the formulation of: Perhaps, which includes multiple uncertainties: A tumtum must not perform ḥalitza, as perhaps he will be torn open and found to be a female, who can certainly not perform ḥalitza.
אִי נָמֵי זָכָר נָמֵי, שֶׁמָּא יִמָּצֵא סָרִיס חַמָּה. מַאי בֵּינַיְיהוּ? אָמַר רָבָא:
Alternatively, if he is found to be a male, he may also not perform ḥalitza, since perhaps he will be found to be a eunuch whose condition is caused naturally. The Gemara asks: Since both Rabbi Yehuda and Rabbi Yosei, son of Rabbi Yehuda, agree that a tumtum may not perform ḥalitza for his brother’s wife, what is the practical difference between their opinions? Rava said:
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Bekhorot 42
אַלְּמָה תַּנְיָא: ״הַזָּכָר״ — וְלֹא טוּמְטוּם וְאַנְדְּרוֹגִינוֹס! סְמִי מִיכָּן טוּמְטוּם.
Why, then, is it taught in a baraita that the verse: “Then your valuation shall be for the male” (Leviticus 27:3), includes one whose status as a male is certain but not a tumtum or a hermaphrodite? The Gemara answers: Omit from this baraita the mention of a tumtum, as it is referring only to a hermaphrodite, which is a distinct entity.
תָּא שְׁמַע: יָכוֹל לֹא יְהֵא בְּעֵרֶךְ אִישׁ, אֲבָל יְהֵא בְּעֵרֶךְ אִשָּׁה? תַּלְמוּד לוֹמַר: ״הַזָּכָר… אִם נְקֵבָה״, וְלֹא טוּמְטוּם וְאַנְדְּרוֹגִינוֹס! סְמִי מִיכָּן טוּמְטוּם.
The Gemara suggests: Come and hear the continuation of that baraita: One might have thought that these shall not be valuated according to the valuation of a man, but they shall be valuated according to the valuation of a woman. Therefore, the verse states: “The male,” and in the following verse it states: “And if she is a female, then your valuation shall be thirty shekels” (Leviticus 27:4), indicating only one whose status as a male or female is certain, but not a tumtum or a hermaphrodite, which are categorized as neither male nor female. The Gemara again answers: Omit from this baraita the mention of a tumtum, as it is referring only to a hermaphrodite.
תָּא שְׁמַע: ״אִם זָכָר אִם נְקֵבָה״ — זָכָר וַדַּאי נְקֵבָה וַדָּאִית, וְלֹא טוּמְטוּם וְאַנְדְּרוֹגִינוֹס. סְמִי מִיכָּן טוּמְטוּם.
The Gemara suggests: Come and hear a baraita discussing the peace offering, with regard to which it states: “Whether male or female” (Leviticus 3:1). This indicates: Only a definite male or a definite female, but not a tumtum or a hermaphrodite. Yet again the Gemara responds: Omit from this baraita the mention of a tumtum.
תָּא שְׁמַע: ״הַזָּכָר״ — וְלֹא נְקֵבָה. כְּשֶׁהוּא אוֹמֵר לְמַטָּהּ ״זָכָר״, שֶׁאֵין תַּלְמוּד לוֹמַר; מָה תַּלְמוּד לוֹמַר? לְהוֹצִיא טוּמְטוּם וְאַנְדְּרוֹגִינוֹס. סְמִי מִיכָּן טוּמְטוּם.
The Gemara suggests: Come and hear a baraita: It states with regard to a burnt offering from cattle: “A male” (Leviticus 1:3), from which it can be inferred: But not a female. When it says below, with regard to a burnt offering from sheep: “A male” (Leviticus 1:10), a second time, it is difficult to understand, as there is no need for the verse to state this. Why must the verse state “a male” again? This serves to exclude a tumtum and a hermaphrodite, which are disqualified as burnt offerings. The Gemara answers: Omit from this baraita the mention of a tumtum.
תָּא שְׁמַע: הַנֶּעֱבָד, וְהַמּוּקְצֶה, וְהָאֶתְנַן, וְהַמְּחִיר, וְטוּמְטוּם וְאַנְדְּרוֹגִינוֹס — כּוּלָּן מְטַמְּאִין בְּגָדִים אַבֵּית הַבְּלִיעָה.
The Gemara suggests: Come and hear a baraita discussing the halakhot of ritual impurity imparted by a bird in the throat: Any bird that was not slaughtered in the proper manner, i.e., in its neck with a knife, has the status of a carcass. This carcass renders the one who eats it impure when it is in his throat. Bird offerings, which are killed by pinching the nape of the neck with a fingernail, are the exception to this principle, and they do not impart impurity. With regard to a bird that is worshipped as a deity, or one set aside for idol worship, or one given as payment to a prostitute, or one that was given as the price of a dog (see Deuteronomy 23:19), and similarly with regard to a bird that is a tumtum or a hermaphrodite, if one killed any of them by pinching, they are ritually impure, as they are disqualified as offerings, and the pinching does not purify them. Therefore, they all render a person and the garments he is wearing ritually impure if an olive-bulk of them comes into contact with the throat while eating.
רַבִּי אֱלִיעֶזֶר אוֹמֵר: טוּמְטוּם וְאַנְדְּרוֹגִינוֹס אֵין מְטַמְּאִין בְּגָדִים אַבֵּית הַבְּלִיעָה, שֶׁהָיָה רַבִּי אֱלִיעֶזֶר אוֹמֵר: כׇּל מָקוֹם שֶׁנֶּאֱמַר ״זָכָר וּנְקֵבָה״ אַתָּה מוֹצִיא טוּמְטוּם וְאַנְדְּרוֹגִינוֹס מִבֵּינֵיהֶם.
Rabbi Eliezer says: If one pinched the neck of a tumtum or a hermaphrodite, it does not render the person and the garments he is wearing ritually impure when they are in the throat, as they are in fact fit to be sacrificed. As Rabbi Eliezer would say: Wherever it is stated explicitly in the Torah: “Male,” and: “Female,” you should exclude a tumtum and a hermaphrodite from among them, as their status is uncertain. This applies to animal offerings, with regard to which the Torah states “male” and “female.”
וְעוֹף, הוֹאִיל וְלֹא נֶאֱמַר בּוֹ ״זָכָר וּנְקֵבָה״, אֵין אַתָּה מוֹצִיא טוּמְטוּם וְאַנְדְּרוֹגִינוֹס מִבֵּינֵיהֶם! סְמִי מִיכָּן טוּמְטוּם.
But in the case of a bird offering, since “male” and “female” are not stated with regard to it, but simply doves and pigeons are stated with regard to it, you do not exclude a tumtum and a hermaphrodite from among them, as they are fit for the altar. Now if a tumtum is considered either definitely a male or a female, then why does the first tanna disqualify it from being sacrificed? The Gemara again replies: Omit from this baraita the mention of a tumtum.
תָּא שְׁמַע: רַבִּי אֶלְעָזָר אוֹמֵר: הַטְּרֵיפָה, וְהַכִּלְאַיִם, וְיוֹצֵא דּוֹפֶן, טוּמְטוּם וְאַנְדְּרוֹגִינוֹס — לֹא קְדוֹשִׁים וְלֹא מַקְדִּישִׁין.
The Gemara suggests: Come and hear that Rabbi Elazar says: An animal with a condition that will cause it to die within twelve months [tereifa], and prohibited diverse kinds of livestock, and an animal born by caesarean section, and an animal that is a tumtum or a hermaphrodite do not become consecrated and do not render another animal consecrated in their place.
וְאָמַר שְׁמוּאֵל: לֹא קְדוֹשִׁים בִּתְמוּרָה, וְלֹא מַקְדִּישִׁין לַעֲשׂוֹת תְּמוּרָה! סְמִי מִיכָּן טוּמְטוּם.
And Shmuel says in explanation: They do not become consecrated by substitution, i.e., if one sought to substitute one of these animals for a sacrificial animal, it does not become sacred. And if one of these was born to a sacrificial animal, they do not render a non-sacred animal consecrated in a case where one wanted to render it a substitute for them. And if a tumtum is either a male or female, why would it not become consecrated and render another animal consecrated? The Gemara answers: Omit from this baraita the mention of a tumtum.
תָּא שְׁמַע: רַבִּי אֶלְעָזָר אוֹמֵר: חֲמִשָּׁה לֹא קְדוֹשִׁים וְלֹא מַקְדִּישִׁין, וְאֵלּוּ הֵן: הַטְּרֵיפָה, וְהַכִּלְאַיִם, וְיוֹצֵא דּוֹפֶן, וְטוּמְטוּם, וְאַנְדְּרוֹגִינוֹס. וְכִי תֵּימָא הָכָא נָמֵי סְמִי מִיכָּן טוּמְטוּם — הָווּ לְהוּ אַרְבָּעָה! אַפֵּיק טוּמְטוּם, וְעָיֵיל יָתוֹם.
The Gemara suggests: Come and hear a slightly different version of that baraita. Rabbi Elazar says: There are five types of animals that do not become consecrated and do not render another animal consecrated, and they are: A tereifa, and prohibited diverse kinds of livestock, and an animal born by caesarean section, and an animal that is a tumtum, and a hermaphrodite. And if you would say: Here too, omit from this baraita a tumtum, then there are only four types of animals listed in the baraita. The Gemara answers: Remove the mention of a tumtum and in its place insert an orphan, i.e., an animal born after the death of its mother, which is also disqualified as a sacrifice.
לֵימָא כְּתַנָּאֵי? רַבִּי אִילְעַאי אוֹמֵר מִשּׁוּם רַבִּי יִשְׁמָעֵאל: אַנְדְּרוֹגִינוֹס בְּכוֹר הוּא וּמוּמוֹ עִמּוֹ, וַחֲכָמִים אוֹמְרִים: אֵין קְדוּשָּׁה חָלָה עָלָיו. רַבִּי שִׁמְעוֹן בֶּן יְהוּדָה אוֹמֵר מִשּׁוּם רַבִּי שִׁמְעוֹן: הֲרֵי הוּא אוֹמֵר ״הַזָּכָר״, וְכׇל מָקוֹם שֶׁנֶּאֱמַר ״זָכָר״ אֵינוֹ אֶלָּא לְהוֹצִיא טוּמְטוּם וְאַנְדְּרוֹגִינוֹס.
The Gemara suggests: Let us say that this question of whether a tumtum is a distinct entity or is definitely either a male or female is the subject of a dispute between tanna’im. As it is taught in a baraita that Rabbi Ilai says in the name of Rabbi Yishmael: A hermaphrodite is a firstborn, and it comes with its blemish; and the Rabbis say: It is not imbued with sanctity. Rabbi Shimon ben Yehuda says in the name of Rabbi Shimon: The verse states: “Males” (Deuteronomy 15:19), and wherever it is stated: Male,” this serves to exclude only a tumtum and a hermaphrodite. Since according to Rabbi Shimon ben Yehuda it is necessary for a verse to exclude a tumtum, like a hermaphrodite, from the category of a male, evidently in his opinion a tumtum is not considered to be one whose status as a male is uncertain but a distinct entity.
וְכִי תֵּימָא: סְמִי מִיכָּן טוּמְטוּם, רַבִּי שִׁמְעוֹן בֶּן יְהוּדָה הַיְינוּ רַבָּנַן! אֶלָּא לָאו טוּמְטוּם אִיכָּא בֵּינַיְיהוּ, דְּתַנָּא קַמָּא סָבַר: אֵין קְדוּשָּׁה חָלָה עָלָיו אַאַנְדְּרוֹגִינוֹס, אֲבָל טוּמְטוּם סְפֵיקָא הוּא וְקָדוֹשׁ מִסְּפֵיקָא, וַאֲתָא רַבִּי שִׁמְעוֹן
The Gemara analyzes this baraita: And if you would say: Here too, omit from this baraita a tumtum, then the opinion of Rabbi Shimon ben Yehuda is the same as that of the Rabbis, as they too maintain that a hermaphrodite is not sacred. Rather, is it not that the difference between them is with regard to the status of a tumtum, as the first tanna, i.e., the Rabbis, holds: It is not imbued with sanctity, and they are referring specifically to a hermaphrodite, which was the subject of Rabbi Ilai’s statement, but a tumtum is an uncertain case, and therefore it is sacred due to uncertainty. And Rabbi Shimon
בֶּן יְהוּדָה לְמֵימַר: טוּמְטוּם בְּרִיָּה הוּא וְלֹא קָדוֹשׁ! לָא, דְּכוּלֵּי עָלְמָא טוּמְטוּם בִּבְרִיָּה לָא מְסַפְּקָא, זָכָר וּנְקֵבָה הוּא דִּמְסַפְּקָא.
ben Yehuda comes to say: A tumtum is not of uncertain status, but a distinct entity, and it is not sacred at all. The Gemara responds: No, everyone agrees with regard to the statement that a tumtum is a distinct entity that there is no doubt that this is incorrect. Where there is doubt is with regard to whether it is a male or a female.
מֵטִיל מַיִם בִּמְקוֹם זַכְרוּת — דְּכוּלֵּי עָלְמָא לָא פְּלִיגִי דְּזָכָר הוּא, כִּי פְּלִיגִי בְּמֵטִיל מַיִם בְּמָקוֹם נַקְבוּת: מָר סָבַר חָיְישִׁינַן שֶׁמָּא נֶהֶפְכָה זַכְרוּתוֹ לְנַקְבוּתוֹ, וּמַר סָבַר לָא חָיְישִׁינַן. כִּי הָא דְּהוֹרָה רַבִּי אֶלְעָזָר: בִּבְהֵמָה מֵטִיל מַיִם בְּמָקוֹם נַקְבוּת — חוּלִּין.
In addition, in a case where the tumtum urinates from the place of the male sex organ, then everyone agrees that it is a male. When they disagree is in the case of a tumtum that urinates from the place of the female sex organ. One Sage, the Rabbis, holds that we are concerned that perhaps its male sex organ was inverted toward its female sex organ; therefore, it is of uncertain status. And one Sage, Rabbi Shimon ben Yehuda, holds that we are not concerned about this possibility; rather, it is definitely a female. And Rabbi Shimon ben Yehuda maintains in accordance with that which Rabbi Elazar ruled: With regard to a firstborn animal that urinates from the place where the female sex organ is found, it is non-sacred, as it is certainly a female.
תָּהֵי בַּהּ רַבִּי יוֹחָנָן: מַאן דְּלָא חָשׁ לְתַנָּא קַמָּא וּלְרַבִּי יִשְׁמָעֵאל? וְלֵימָא רַבִּי יוֹחָנָן נָמֵי: מַאן דְּלָא חָשׁ לְרַבָּנַן בָּתְרָאֵי? דְּאָמַר רַב חִסְדָּא: מַחֲלוֹקֶת בְּאַנְדְּרוֹגִינוֹס, אֲבָל בְּטוּמְטוּם — דִּבְרֵי הַכֹּל סְפֵיקָא!
Rabbi Yoḥanan wondered about this ruling of Rabbi Elazar: Who is the Sage who is not concerned about the opinion of the first tanna in the mishna and about the opinion of Rabbi Yishmael, who maintain that a tumtum is a case of uncertainty? The Gemara asks: And let Rabbi Yoḥanan also say: Who is this who is not concerned about the opinion of the latter Rabbis in the mishna, as Rav Ḥisda says: This dispute refers to a hermaphrodite; but with regard to a tumtum, everyone agrees that it is an uncertain case.
רַבִּי יוֹחָנָן לָא סְבִירָא לֵיהּ דְּרַב חִסְדָּא, אִי לָא סְבִירָא לֵיהּ, לֵימָא הוּא דְּאָמַר כְּרַבָּנַן בָּתְרָאֵי? הָכִי נָמֵי קָאָמַר: מַאן שָׁבֵיק תְּרֵי וְעָבֵיד כְּחַד!
The Gemara explains that Rabbi Yoḥanan does not hold in accordance with that statement of Rav Ḥisda; rather, he maintains that according to the latter Rabbis a tumtum is a distinct entity. The Gemara asks: If Rabbi Yoḥanan does not hold in accordance with Rav Ḥisda, why did he wonder about Rabbi Elazar’s ruling? Let him say that Rabbi Elazar said his opinion in accordance with the opinion of the latter Rabbis. The Gemara answers: That is indeed what he is saying: Who is the Sage who leaves aside the opinion of two Sages, the first tanna and Rabbi Yishmael, and acts in accordance with one opinion, the latter Rabbis?
וְרַבִּי אֶלְעָזָר כְּמַאן סָבְרַהּ? כִּי הָא דְּאָמַר רֵישׁ לָקִישׁ: לֹא אָמְרוּ טוּמְטוּם סָפֵק אֶלָּא בְּאָדָם, הוֹאִיל וְזַכְרוּתוֹ וְנַקְבוּתוֹ בְּמָקוֹם אֶחָד, אֲבָל בְּהֵמָה — מֵטִיל מַיִם בְּמָקוֹם זַכְרוּת זָכָר, מֵטִיל מַיִם בְּמָקוֹם נַקְבוּת נְקֵבָה.
The Gemara asks: And Rabbi Elazar, in accordance with whose opinion does he hold? The Gemara answers that he holds in accordance with that which Reish Lakish says: The Sages said that the halakhic status of a tumtum is an uncertain case only with regard to a person, since the male sex organ and the female sex organ are in one place, i.e., a man and a woman urinate from the same area of the body. Since that area is concealed in the case of a tumtum, its status is uncertain. But with regard to a tumtum animal, there is no uncertainty whether it is a male or a female, as the genitals of a male and a female are not found in the same place. Rather, if it urinates from the place of the male sex organ, it is a male; if it urinates from the place of the female sex organ, it is a female.
מַתְקֵיף לַהּ רַב אוֹשַׁעְיָא: וְלֵיחוּשׁ שֶׁמָּא נֶהֶפְכָה זַכְרוּתוֹ לְנַקְבוּתוֹ! אֲמַר לֵיהּ: כְּמַאן? כְּרַבִּי מֵאִיר דְּחָיֵישׁ לְמִיעוּטָא?!
Rav Oshaya objects to this: And let us be concerned that perhaps its male sex organ was turned round to the place of its female sex organ. Abaye said to him: In accordance with whose opinion do you raise this objection? Is it in accordance with the opinion of Rabbi Meir, who is concerned about the minority of cases? The halakha is not in accordance with the opinion of Rabbi Meir, and therefore one should follow the majority of animals, to whom this does not occur.
אַבָּיֵי בַּר אָבִין וְרַב חֲנַנְיָא בַּר אָבִין דְאָמְרִי תַּרְוַיְיהוּ: אֲפִילּוּ תֵּימָא רַבָּנַן, הוֹאִיל וְאִישְׁתַּנִּי אִישְׁתַּנִּי. אִית דְּאָמַר אִישְׁתַּנִּי, וְאִית דְּאָמַר לָא אִישְׁתַּנִּי.
Abaye bar Avin and Rav Ḥananya bar Avin both say: You may even say that Rav Oshaya’s objection is in accordance with the opinion of the Rabbis, who are not concerned about a minority. The reason is that since in this case, the animal has changed in that it is different from typical animals, as it is a tumtum, perhaps it is also changed with regard to its male sex organ being inverted toward the female sex organ. If so, the Sages disagree with regard to this principle: There are those who say that since it has changed, it has changed, and there are those who say that the claim that since it has changed, it has changed is not accepted.
לֵימָא אִישְׁתַּנִּי וְלָא אִישְׁתַּנִּי תַּנָּאֵי? דְּתַנְיָא: טוּמְטוּם שֶׁקִּידֵּשׁ — קִדּוּשָׁיו קִדּוּשִׁין, נִתְקַדֵּשׁ — קִדּוּשָׁיו קִדּוּשִׁין.
The Gemara suggests: Let us say that the question of whether an animal that has changed in one respect has changed in a different respect, or whether it has not changed, is the subject of a dispute between tanna’im. As it is taught in a baraita: With regard to a tumtum who betrothed a woman, the betrothal is considered a betrothal, due to uncertainty, as the tumtum might be a male; and similarly, if the tumtum was betrothed by a man, the betrothal is deemed a betrothal due to uncertainty, as the tumtum might be a female.
וְחוֹלֵץ, וְחוֹלְצִין לְאִשְׁתּוֹ, וּמְיַבְּמִים לְאִשְׁתּוֹ. וְתַנְיָא אִידַּךְ: אֵשֶׁת טוּמְטוּם חוֹלֶצֶת וְלֹא מִתְיַיבֶּמֶת.
The baraita continues: And if the brother of the tumtum died childless, and there is no other brother who can perform levirate marriage with the widow, the tumtum performs ḥalitza, i.e., his brother’s widow removes his shoe, as the tumtum might be a male, and she would require ḥalitza to release her from the levirate bond. And if the tumtum died, one of the brothers of the tumtum performs ḥalitza with the wife of the tumtum, or enters into levirate marriage with the wife of the tumtum, in case the tumtum was a male. And it is taught in another baraita: The wife of a tumtum performs ḥalitza and does not enter into levirate marriage.
סַבְרוּהָ, דְּכוּלֵּי עָלְמָא כְּרַבִּי עֲקִיבָא, דְּאָמַר: סְרִיס חַמָּה לֹא חוֹלֵץ וְלֹא מְיַיבֵּם.
With regard to these two baraitot, the Sages assumed that everyone holds in accordance with the opinion of Rabbi Akiva, who says: A eunuch whose condition is caused naturally, i.e., one who was entirely lacking in sexual capacity from birth, does not perform ḥalitza and does not enter into levirate marriage with his sister-in-law, as he is not included in the mitzva of levirate marriage. Likewise, if he died his brothers do not perform ḥalitza with his wife, and they may not enter into levirate marriage with her, as she is forbidden to them as a brother’s wife who does not require levirate marriage.
מַאי לָאו בְּהָא קָמִיפַּלְגִי, דְּמַאן דְּאָמַר חוֹלֵץ, וְחוֹלְצִין לְאִשְׁתּוֹ וּמְיַבְּמִים אֶת אִשְׁתּוֹ, לָא אָמְרִינַן הוֹאִיל וְאִישְׁתַּנִּי אִישְׁתַּנִּי;
Based on this assumption, the Gemara suggests: What, is it not that the two baraitot disagree about this, that the one who says that a tumtum performs ḥalitza and one of the brothers performs ḥalitza with the wife of the tumtum or enters into levirate marriage with the wife of the tumtum holds that we do not say that since this tumtum has changed from an average person, he might also have changed in that he is a eunuch whose condition is caused naturally, and therefore the brothers would be prohibited from entering into levirate marriage with the wife? Rather, if the tumtum is a male, it is assumed that he is capable of fathering children, and consequently his wife requires levirate marriage.
וּמַאן דְּאָמַר חוֹלֶצֶת וְלֹא מִתְיַיבֶּמֶת, אָמְרִינַן הוֹאִיל וְאִישְׁתַּנִּי אִישְׁתַּנִּי?
And the one who says that the wife of a tumtum performs ḥalitza and does not enter into levirate marriage maintains that we say that since this person has changed, he has changed, i.e., the possibility that he might be a eunuch whose condition is caused naturally is considered, and therefore his wife may not enter into levirate marriage.
לָא, דְּכוּלֵּי עָלְמָא אָמְרִינַן הוֹאִיל וְאִישְׁתַּנִּי אִישְׁתַּנִּי, הָא רַבִּי אֱלִיעֶזֶר, וְהָא רַבִּי עֲקִיבָא.
The Gemara responds: No; everyone agrees that we say that since this person has changed, he has changed, and there is a concern that he might be a eunuch whose condition is caused naturally. Rather, the difference between the rulings is that this baraita, which permits the wife of the tumtum to enter levirate marriage, is in accordance with the opinion of Rabbi Eliezer, who disagrees with Rabbi Akiva and maintains that levirate marriage may be performed with the wife of a eunuch whose condition is caused naturally, and that baraita, which prohibits levirate marriage, is in accordance with the opinion of Rabbi Akiva, that the brothers of a eunuch whose condition is caused naturally do not enter into levirate marriage with the wife of the tumtum.
וּמַאן תַּנָּא אַלִּיבָּא דְּרַבִּי עֲקִיבָא? אִילֵימָא רַבִּי יְהוּדָה — הָא וַדַּאי סָרִיס מְשַׁוֵּי לֵיהּ!
The Gemara asks: And who is the tanna who holds in accordance with the opinion of Rabbi Akiva that the wife of a eunuch whose condition is caused naturally does not require levirate marriage, and yet he maintains that the wife of a tumtum must perform ḥalitza? If we say it is Rabbi Yehuda, this cannot be, as in his opinion even if the genitals of a tumtum were revealed and he was found to be a male, he deems him like a definite eunuch whose condition is caused naturally, and therefore his wife does not require ḥalitza at all.
דִּתְנַן, רַבִּי יְהוּדָה אוֹמֵר: טוּמְטוּם שֶׁנִּקְרַע וְנִמְצָא זָכָר — הֲרֵי זֶה לֹא יַחְלוֹץ, מִפְּנֵי שֶׁהוּא כְּסָרִיס!
As we learned in a mishna (Yevamot 81a) that Rabbi Yehuda says: With regard to a tumtum who was torn open so that his genitals were exposed, and he was found to be a male, he must not perform ḥalitza, because he is treated like a eunuch whose condition is caused naturally. Just as this tumtum does not perform ḥalitza, so too, his widow does not require ḥalitza.
אֶלָּא רַבִּי יוֹסֵי בְּרַבִּי יְהוּדָה הִיא, דְּתַנְיָא: רַבִּי יוֹסֵי בְּרַבִּי יְהוּדָה אוֹמֵר: טוּמְטוּם לֹא חוֹלֵץ, שֶׁמָּא יִקָּרַע וְיִמָּצֵא סָרִיס חַמָּה.
Rather, it is the opinion of Rabbi Yosei, son of Rabbi Yehuda, who maintains that if a tumtum was torn open and he was found to be a male, he is considered as a matter of uncertainty to be a eunuch whose condition is caused naturally, and consequently his wife requires ḥalitza. As it is taught in a baraita that Rabbi Yosei, son of Rabbi Yehuda, says: A tumtum does not perform ḥalitza with the wife of his late, childless brother if there are other brothers to perform ḥalitza, as perhaps the skin covering his genitals will be torn open and he will be found to be a eunuch whose condition is caused naturally, and the widow would not be released from the levirate bond by his ḥalitza. According to this opinion, it is not certain that a tumtum would be found to be a eunuch whose condition is caused naturally.
אַטּוּ כֹּל דְּמִיקְּרַע זָכָר מִשְׁתְּכַח, נְקֵבָה לָא מִשְׁתְּכַח? שֶׁמָּא קָאָמַר, שֶׁמָּא יִקָּרַע וְיִמָּצֵא נְקֵבָה.
With regard to the opinion of Rabbi Yosei, son of Rabbi Yehuda, the Gemara asks: Why does this individual not perform ḥalitza due only to the possibility that he will be found to be a eunuch whose condition is caused naturally? Is that to say that every tumtum whose skin was torn is found to be a male and is not found to be a female? The Gemara explains that Rabbi Yosei, son of Rabbi Yehuda, said his opinion in the formulation of: Perhaps, which includes multiple uncertainties: A tumtum must not perform ḥalitza, as perhaps he will be torn open and found to be a female, who can certainly not perform ḥalitza.
אִי נָמֵי זָכָר נָמֵי, שֶׁמָּא יִמָּצֵא סָרִיס חַמָּה. מַאי בֵּינַיְיהוּ? אָמַר רָבָא:
Alternatively, if he is found to be a male, he may also not perform ḥalitza, since perhaps he will be found to be a eunuch whose condition is caused naturally. The Gemara asks: Since both Rabbi Yehuda and Rabbi Yosei, son of Rabbi Yehuda, agree that a tumtum may not perform ḥalitza for his brother’s wife, what is the practical difference between their opinions? Rava said:
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