Yevamot 83
לֵיתַהּ לְמַתְנִיתִין מִקַּמֵּי בָּרַיְיתָא, דְּתַנְיָא: רַבִּי יוֹסֵי אוֹמֵר: אַנְדְּרוֹגִינוֹס — בְּרִיָּה בִּפְנֵי עַצְמָהּ הוּא, וְלֹא הִכְרִיעוּ בּוֹ חֲכָמִים אִם זָכָר אִם נְקֵבָה.
The mishna here, which states that according to Rabbi Yosei a priest who is a hermaphrodite enables his wife to eat teruma, is not to be relied upon in the presence of a baraita that teaches otherwise. As it is taught in a baraita that Rabbi Yosei says: A hermaphrodite is a creature unto himself, and the Sages did not determine whether he is a male or a female. He is consequently prohibited from marrying a woman, and if he does so he does not enable her to eat teruma.
אַדְּרַבָּה לֵיתַהּ לְבָרַיְיתָא מִקַּמֵּי מַתְנִיתִין! מִדְּשַׁבְקֵיהּ רַבִּי יוֹסֵי לְבַר זוּגֵיהּ — שְׁמַע מִינַּהּ הֲדַר בֵּיהּ.
The Gemara asks: On the contrary, say that the baraita is not to be relied upon in the presence of the mishna here, as baraitot are generally considered less authoritative than mishnayot. The Gemara answers: From the fact that Rabbi Yosei left his colleague, Rabbi Shimon, as the mishna’s ruling is attributed to both Rabbi Yosei and Rabbi Shimon whereas the teaching of the baraita is reported only in the name of Rabbi Yosei, learn from this that Rabbi Yosei retracted his original opinion that he had maintained together with Rabbi Shimon and reached a different conclusion.
וּשְׁמוּאֵל אָמַר: לֵיתַהּ לְבָרַיְיתָא מִקַּמֵּי מַתְנִיתִין. אַדְּרַבָּה, לֵיתָא לְמַתְנִיתִין מִקַּמֵּי בָּרַיְיתָא, דְּהָא שָׁמְעִינַן לֵיהּ לִשְׁמוּאֵל דְּחָיֵישׁ לִיחִידָאָה! הָנֵי מִילֵּי, כִּי לָא מִתְעַקְרָא מַתְנִיתִין, אֲבָל כִּי מִתְעַקְרָא מַתְנִיתִין — לָא חָיֵישׁ.
And Shmuel said the reverse: The baraita is not to be relied upon in the presence of the mishna here. The Gemara asks: On the contrary, say that the mishna here is not to be relied upon in the presence of the baraita, as we have heard that Shmuel takes into consideration even an individual dissenting opinion appearing in a baraita. The Gemara answers: This applies only when the mishna itself is not thereby uprooted, as the baraita merely adds to it. But when the mishna is uprooted by a contrary statement taught in a baraita, he does not take it into consideration.
אָמְרִי בֵּי רַב מִשְּׁמֵיהּ דְּרַב: הֲלָכָה כְּרַבִּי יוֹסֵי בְּאַנְדְּרוֹגִינוֹס וּבְהַרְכָּבָה, וּשְׁמוּאֵל אָמַר: בְּקוֹשִׁי וּבְקִידּוּשׁ.
The Sages of the school of Rav said in the name of Rav that the halakha is in accordance with the opinion of Rabbi Yosei, both with regard to the halakha of a hermaphrodite and with regard to the halakha of grafting. And Shmuel says: The halakha is in accordance with his opinion with regard to the laws of protracted labor and forfeiture.
אַנְדְּרוֹגִינוֹס — הָא דַּאֲמַרַן. הַרְכָּבָה — דִּתְנַן: אֵין נוֹטְעִין וְאֵין מַבְרִיכִין וְאֵין מַרְכִּיבִין עֶרֶב שְׁבִיעִית פָּחוֹת מִשְּׁלֹשִׁים יוֹם לִפְנֵי רֹאשׁ הַשָּׁנָה. וְאִם נָטַע וְהִבְרִיךְ וְהִרְכִּיב — יַעֲקוֹר. רַבִּי יְהוּדָה אוֹמֵר: כׇּל הַרְכָּבָה שֶׁאֵינָהּ קוֹלֶטֶת בִּשְׁלֹשָׁה יָמִים — שׁוּב אֵינָהּ קוֹלֶטֶת. רַבִּי יוֹסֵי וְרַבִּי שִׁמְעוֹן אוֹמְרִים: שְׁתֵּי שַׁבָּתוֹת.
The Gemara clarifies: The halakha of a hermaphrodite is that which we just said, that he is considered a creature unto himself (Rabbeinu Ḥananel). The halakha of grafting is as we learned in a mishna (Shevi’it 2:6): One may not plant, or sink the shoot of a vine into the ground, or graft a shoot onto a tree on the eve of the Sabbatical Year less than thirty days before Rosh HaShana, lest it take root in the seventh year. And if he planted or sank or grafted, he must uproot it. Rabbi Yehuda says: Any graft that does not take root in three days will never take root, and therefore it is prohibited to plant only for three days before the start of the Sabbatical Year. Rabbi Yosei and Rabbi Shimon say that it takes two weeks for a plant to take root.
וְאָמַר רַב נַחְמָן אָמַר רַבָּה בַּר אֲבוּהּ: לְדִבְרֵי הָאוֹמֵר שְׁלֹשִׁים — צָרִיךְ שְׁלֹשִׁים ושְׁלֹשִׁים. לְדִבְרֵי הָאוֹמֵר שְׁלֹשָׁה — צָרִיךְ שְׁלֹשָׁה ושְׁלֹשִׁים. לְדִבְרֵי הָאוֹמֵר שְׁתֵּי שַׁבָּתוֹת — צָרִיךְ שְׁתֵּי שַׁבָּתוֹת וּשְׁלֹשִׁים.
And Rav Naḥman said that Rabba bar Avuh said: According to the first tanna, who says thirty days, he means that thirty days are required for the tree to take root and another thirty days are required for the addition to the Sabbatical Year, as the prohibitions of the Sabbatical Year apply already during the last thirty days of the sixth year. It is consequently prohibited to plant sixty days before Rosh HaShana. And similarly, according to Rabbi Yehuda, who says three days, he means that three days are required for the tree to take root and another thirty days are required for the addition to the Sabbatical Year. And so too, according to Rabbi Yosei and Rabbi Shimon, who say two weeks, they mean that two weeks are required for the tree to take root and another thirty days are required for the addition to the Sabbatical Year. Rav rules on this matter in accordance with the opinion of Rabbi Yosei.
וּשְׁמוּאֵל אָמַר: בְּקוֹשִׁי וְקִידּוּשׁ. קוֹשִׁי — דִּתְנַן:
And Shmuel said that the halakha is ruled in accordance with the opinion of Rabbi Yosei with regard to protracted labor and proscription as well. The Gemara explains: What is the case of protracted labor? As we learned in a mishna (Nidda 36b): Ordinarily a woman who experiences a flow of blood on three consecutive days during a time of the month when she does not expect to experience menstrual bleeding is rendered ritually impure as a zava. However, if she experiences such bleeding while she is in protracted labor, the bleeding is attributed to her labor, and she is governed by the halakhot of a woman after childbirth.
כַּמָּה יְהֵא קִישּׁוּיָהּ — רַבִּי מֵאִיר אוֹמֵר: אוֹ אַרְבָּעִים אוֹ חֲמִשִּׁים יוֹם. רַבִּי יְהוּדָה אוֹמֵר: דַּיָּיהּ חׇדְשָׁהּ. רַבִּי יוֹסֵי וְרַבִּי שִׁמְעוֹן אוֹמְרִים: אֵין קִישּׁוּי יוֹתֵר מִשְּׁתֵּי שַׁבָּתוֹת.
The tanna’im disagree about the question: How long is a woman’s period of protracted labor? For what period of time prior to her giving birth is the bleeding attributed to her labor? Rabbi Meir says: It is up to forty or fifty days before she delivers. Rabbi Yehuda says: Her month suffices for her, i.e., it is from the beginning of the month in which she gives birth. Rabbi Yosei and Rabbi Shimon say: Protracted labor does not last for more than two weeks. Shmuel rules in accordance with Rabbi Yosei in this case.
קִידּוּשׁ — דִּתְנַן: הַמְסַכֵּךְ גַּפְנוֹ עַל גַּבֵּי תְּבוּאָתוֹ שֶׁל חֲבֵרוֹ — הֲרֵי זֶה קִדֵּשׁ, וְחַיָּיב בְּאַחְרָיוּתוֹ, דִּבְרֵי רַבִּי מֵאִיר. רַבִּי יוֹסֵי וְרַבִּי שִׁמְעוֹן אוֹמְרִים:
What is this halakha of proscription? As we learned in a mishna (Kilayim 7:4): If one causes his grapevine to overshadow the grain of another, he has proscribed it, rendering it forbidden as a food crop in a vineyard, and he bears financial responsibility for it, i.e., he must compensate the other individual for the loss of the produce that has been rendered forbidden. This is the statement of Rabbi Meir. Rabbi Yosei and Rabbi Shimon say:
אֵין אָדָם אוֹסֵר דָּבָר שֶׁאֵינוֹ שֶׁלּוֹ.
A person cannot render forbidden an item that is not his. Since the grain does not belong to him, he cannot render it forbidden. According to Shmuel, the halakha is in accordance with Rabbi Yosei in this case as well.
אִיבַּעְיָא לְהוּ: בְּאַנְדְּרוֹגִינוֹס מָה לִי אָמַר שְׁמוּאֵל? תָּא שְׁמַע, דְּאָמַר שְׁמוּאֵל לְרַב עָנָן: לֵיתַהּ לְבָרַיְיתָא מִקַּמֵּי מַתְנִיתִין.
A dilemma was raised before the Sages: As for a hermaphrodite, what did Shmuel say? It was stated in the name of Rav that the halakha is ruled in accordance with the opinion of Rabbi Yosei with regard to a hermaphrodite, but no ruling was attributed to Shmuel concerning this case. The Gemara suggests: Come and hear, as Shmuel said to Rav Anan: The baraita is not to be relied upon in the presence of the mishna. This indicates that Shmuel rejects Rabbi Yosei’s opinion as stated in the baraita that a hermaphrodite is considered a creature unto himself.
הַרְכָּבָה מָה לִי אָמַר שְׁמוּאֵל? תָּא שְׁמַע, דַּאֲמַר לֵיהּ שְׁמוּאֵל לְרַב עָנָן: תְּנִי כְּמַאן דְּאָמַר שְׁלֹשָׁה וּשְׁלֹשִׁים.
The Gemara asks further: Concerning grafting, what did Shmuel say? The Gemara suggests: Come and hear, as Shmuel said to Rav Anan that he should teach in accordance with the opinion of the one who said that it is prohibited to plant for thirty-three days before Rosh HaShana of the Sabbatical Year. Evidently, he ruled on this matter in accordance with the opinion of Rabbi Yehuda, and not that of Rabbi Yosei.
קוֹשִׁי מָה לִי אָמַר רַב? תֵּיקוּ.
The Gemara continues to ask along these lines: With regard to the case of protracted labor, what did Rav say? Does he accept Rabbi Yosei’s opinion, as does Shmuel? No resolution was found for this question, and the Gemara concludes that this dilemma shall stand unresolved.
קִידּוּשׁ מָה לִי אָמַר רַב? אָמַר רַב יוֹסֵף: תָּא שְׁמַע, דְּאָמַר רַב הוּנָא אָמַר רַב: אֵין הֲלָכָה כְּרַבִּי יוֹסֵי. אֲמַר לֵיהּ אַבָּיֵי: מַאי חָזֵית דְּסָמְכַתְּ אַהָא? סְמוֹךְ אַהָא! דְּאָמַר רַב אַדָּא אָמַר רַב: הֲלָכָה כְּרַבִּי יוֹסֵי. ״אָמְרִי בֵּי רַב״ — מַנּוּ? רַב הוּנָא, וְרַב הוּנָא אָמַר: אֵין הֲלָכָה.
The Gemara further inquires: With regard to proscription, what did Rav say? Rav Yosef said: Come and hear, as Rav Huna said that Rav said that the halakha is not in accordance with the opinion of Rabbi Yosei. Abaye said to him: What did you see that led you to rely on that source? Rely on this source; as Rav Adda said that Rav said that the halakha is in fact in accordance with the opinion of Rabbi Yosei. There is, then, a tradition that Rav accepted Rabbi Yosei’s view. The Gemara responds: When it is stated that the Sages of the school of Rav said a teaching, to whom is it referring? The reference is to Rav Huna. And it was Rav Huna who said that the halakha is not in accordance with the opinion of Rabbi Yosei. It may be presumed, then, that Rav Adda’s version of Rav’s ruling is in error, as preference is given to the report of Rav’s preeminent disciple, Rav Huna.
רַבִּי יְהוּדָה אוֹמֵר: טוּמְטוּם וְכוּ׳. אָמַר רַבִּי אַמֵּי: מַאי עָבֵיד לֵיהּ רַבִּי יְהוּדָה לְטוּמְטוּם דְּבֵירֵי, דְּאוֹתְבוּהּ אַבֵּי כּוּרְסְיָה וְאִיקְּרַע, וְאוֹלֵיד שְׁבַע בְּנִין! וְרַבִּי יְהוּדָה אָמַר לָךְ: חַזֵּר עַל בָּנָיו מֵאַיִן הֵם.
§ It is taught in the mishna that Rabbi Yehuda says: If a tumtum, whose external sexual organs are indeterminate, 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. Rabbi Ami said: What would Rabbi Yehuda do with the tumtum living in the town of Biri, who was placed in a seat for an operation, and the tissue covering his genitals was torn open and he later fathered seven children? Evidently, a tumtum who was torn open is not necessarily sexually impotent. The Gemara answers that Rabbi Yehuda could have said to you: Go and inquire about his children and find out from where they came. He did not believe that they were fathered by this man but rather by someone else.
תַּנְיָא, רַבִּי יוֹסֵי בְּרַבִּי יְהוּדָה אוֹמֵר: טוּמְטוּם לֹא יַחְלוֹץ, שֶׁמָּא יִקָּרַע וְנִמְצָא סְרִיס חַמָּה. אַטּוּ כֹּל דְּמִקְּרַע זָכָר הָוֵי? הָכִי קָאָמַר: שֶׁמָּא יִקָּרַע וְנִמְצָא נְקֵבָה, וַאֲפִילּוּ נִמְצָא זָכָר — שֶׁמָּא יִמָּצֵא סָרִיס חַמָּה.
It is taught in a baraita: Rabbi Yosei, son of Rabbi Yehuda, says: A tumtum must not perform ḥalitza, as perhaps he will be torn open and found to be a eunuch by natural causes. The Gemara asks: Why did he formulate his teaching in this manner? Is that to say that every tumtum who is torn open is a male? It is certainly possible for a tumtum to be found to be a female. The Gemara explains: This is what he said: A tumtum must not perform ḥalitza, as perhaps he will be torn open and found to be a female, who certainly cannot perform ḥalitza, and even if he is found to be a male, perhaps he will be found to be a eunuch by natural causes.
מַאי בֵּינַיְיהוּ? אָמַר רָבָא: לִפְסוֹל בִּמְקוֹם אַחִין וְלַחְלוֹץ שֶׁלֹּא בִּמְקוֹם אַחִין אִיכָּא בֵּינַיְיהוּ.
The Gemara asks: What is the practical halakhic difference between the opinions of Rabbi Yehuda and Rabbi Yosei? Rava said: There is a practical difference between them as to whether the ḥalitza performed by a tumtum disqualifies the brothers in a case where there are other brothers in addition to the tumtum. According to Rabbi Yehuda, a tumtum is regarded as definitely sexually impotent, and therefore his ḥalitza is of no consequence. Therefore, if the tumtum went ahead and performed ḥalitza, he has not disqualified the other brothers from performing levirate marriage. According to Rabbi Yosei, however, he is only doubtfully sexually impotent, and therefore he has disqualified the other brothers from performing levirate marriage. And there is also a difference between them as to whether the tumtum must perform ḥalitza where there are no other brothers besides him. According to Rabbi Yehuda he need not do so, whereas according to Rabbi Yosei he must perform ḥalitza owing to his uncertain status.
אָמַר רַב שְׁמוּאֵל בַּר יְהוּדָה אָמַר רַבִּי אַבָּא אֲחוּהּ דְּרַבִּי יְהוּדָה בַּר זַבְדִּי אָמַר רַב יְהוּדָה אָמַר רַב: אַנְדְּרוֹגִינוֹס חַיָּיבִין עָלָיו סְקִילָה, מִשְּׁתֵּי מְקוֹמוֹת. מֵיתִיבִי, רַבִּי אֱלִיעֶזֶר אָמַר: אַנְדְּרוֹגִינוֹס חַיָּיבִין עָלָיו סְקִילָה כַּזָּכָר. בַּמֶּה דְּבָרִים אֲמוּרִים — בְּזַכְרוּת שֶׁלּוֹ, אֲבָל בְּנַקְבוּת שֶׁלּוֹ — פָּטוּר!
§ Rav Shmuel bar Yehuda said that Rabbi Abba, brother of Rabbi Yehuda bar Zavdi, said that Rav Yehuda said that Rav said: With regard to a hermaphrodite, one is liable to receive the punishment of stoning on his account for intercourse at two places, whether one penetrated him anally, in the manner of homosexual intercourse, or through his female organ. The Gemara raises an objection against this from the following teaching. Rabbi Eliezer said: If one had intercourse with a hermaphrodite, he is liable to be punished with stoning on his account as if he had relations with a male. In what case is this statement said? It is if he had relations with him through his male organ, i.e., in the manner of homosexual intercourse, but if he engaged in intercourse with him through his female organ, he is exempt.
הוּא דְּאָמַר כִּי הַאי תַּנָּא, דְּתַנְיָא, רַבִּי סִימַאי אוֹמֵר: אַנְדְּרוֹגִינוֹס חַיָּיבִין עָלָיו סְקִילָה מִשְּׁתֵּי מְקוֹמוֹת. מַאי טַעְמָא דְּרַבִּי סִימַאי? אָמַר רָבָא: בַּר הַמְדּוּרֵי אַסְבְּרַהּ לִי: ״וְאֶת זָכָר לֹא תִשְׁכַּב מִשְׁכְּבֵי אִשָּׁה״, אֵי זֶהוּ זָכָר שֶׁיֵּשׁ בּוֹ שְׁנֵי מִשְׁכָּבוֹת — הֱוֵי אוֹמֵר זֶה אַנְדְּרוֹגִינוֹס.
The Gemara answers that Rav stated his opinion in accordance with the opinion of this tanna, as it is taught in the following baraita: Rabbi Simai says: With regard to a hermaphrodite, one is liable to be punished with stoning on his account for intercourse at two places. The Gemara asks: What is the reasoning of Rabbi Simai? Rava said: The Sage bar Hamedurei explained the matter to me, based on an allusion to this halakha found in the Bible. The verse states: “And you shall not lie with a male as with a woman [mishkevei isha]” (Leviticus 18:22). The phrase mishkevei isha, referring to lying with a woman, appears in the plural. Now, what male has two manners of lying? You must say that this is referring to a hermaphrodite, and the plural form mishkevei, meaning: Lyings, indicates that there is liability for both manners of intercourse with him.
וְרַבָּנַן, אַף עַל גַּב דְּאִית בֵּיהּ שְׁנֵי מִשְׁכָּבוֹת — ״אֶת זָכָר״ כְּתִיב.
The Gemara asks: And how do the Rabbis who disagree with Rabbi Simai counter this argument? The Gemara explains: Although he has two manners of lying, it is nevertheless written: “With a male,” indicating that one is liable to be stoned on a hermaphrodite’s account only if he had relations with him in the manner of a male.
וְרַבָּנַן, זָכָר גְּרֵידָא מְנָא לְהוּ? מֵ״אִשָּׁה״. בְּאִשָּׁה שֶׁלֹּא כְּדַרְכָּהּ מְנָא לְהוּ? מִ״וְּאִשָּׁה״.
The Gemara asks: And the Rabbis, who explain this entire verse as referring to a hermaphrodite, from where do they derive that a man is prohibited from engaging in relations with an ordinary male? The Gemara answers: They derive it from the words “a woman.” The Gemara asks further: And from where do the Rabbis derive that one is liable to be punished for engaging in intercourse with a woman who is forbidden to him even if he engaged in relations in an unnatural manner, i.e., anal intercourse? The Gemara responds: They derive it from the inclusive “and” in “and…with a woman.”
אָמַר רַב שֵׁזְבִי אָמַר רַב חִסְדָּא: לֹא לַכֹּל אָמַר רַבִּי אֱלִיעֶזֶר אַנְדְּרוֹגִינוֹס זָכָר מְעַלְּיָא הוּא, שֶׁאִם אַתָּה אוֹמֵר כֵּן, בְּמוּקְדָּשִׁין — יִקְדַּשׁ.
§ Rav Shezvi said that Rav Ḥisda said: Not in all regards did Rabbi Eliezer say that a hermaphrodite is a proper male. As, if you say so, that a hermaphrodite is a proper male in every aspect, then with regard to consecrated animals an animal that is a hermaphrodite should become sacred if one consecrated it.
וּמְנָלַן דְּלָא קָדֵשׁ — דְּתָנוּ רַבָּנַן: הַנִּרְבָּע וְהַמּוּקְצֶה וְהַנֶּעֱבָד וְהָאֶתְנַן וּמְחִיר וְטוּמְטוּם וְאַנְדְּרוֹגִינוֹס — מְטַמְּאִין בְּגָדִים אַבֵּית הַבְּלִיעָה.
And from where do we derive that it does not become sacred? As the Sages taught in a baraita: With regard to a bird used for sexual relations with a human being, and one set aside for idolatrous purposes, and one that itself was worshipped as an idol, and one given as payment to a prostitute (see Deuteronomy 23:19), and one that was the price of a dog received in exchange for the sale of a dog (see Deuteronomy 23:19), and similarly, a bird that is a tumtum or a hermaphrodite, if one killed any of these birds by pinching their necks in the manner of an offering rather than by ritual slaughter, the birds render him and the garments he is wearing ritually impure, when the birds are eaten and come into contact with his throat. The reason is that pinching is valid only for sacrificial birds; any other bird that is killed by pinching is deemed an unslaughtered carcass. Since none of these birds are fit to be sacrificed, pinching their necks renders them unslaughtered carcasses, and the unslaughtered carcass of a clean bird imparts ritual impurity when it is eaten and reaches the individual’s throat.
רַבִּי אֱלִיעֶזֶר אוֹמֵר: טוּמְטוּם וְאַנְדְּרוֹגִינוֹס אֵין מְטַמְּאִין בְּגָדִים אַבֵּית הַבְּלִיעָה. שֶׁהָיָה רַבִּי אֱלִיעֶזֶר אוֹמֵר: כׇּל מָקוֹם שֶׁנֶּאֱמַר זָכָר וּנְקֵבָה — אַתָּה מוֹצִיא טוּמְטוּם וְאַנְדְּרוֹגִינוֹס מִבֵּינֵיהֶם. וְעוֹף, הוֹאִיל וְלֹא נֶאֱמַר בּוֹ זָכָר וּנְקֵבָה — אִי אַתָּה מוֹצִיא טוּמְטוּם וְאַנְדְּרוֹגִינוֹס מִבֵּינֵיהֶם.
Rabbi Eliezer says: If one pinched the neck of a bird that is a tumtum or a hermaphrodite, it does not render him and the garments he is wearing ritually impure when it is eaten and comes into contact with his throat, as the sanctity of an offering does in fact apply to it. As Rabbi Eliezer would say: Wherever it is explicitly stated in the Torah “male” and “female,” you are to remove a tumtum and a hermaphrodite from among them, as their gender status is in doubt. This is true of animal offerings, with regard to which the Torah uses the terms male and female. In the case of a bird-offering, however, since male and female are not stated with regard to it, but instead the Torah simply mentions turtledoves and young pigeons, you are not to remove a tumtum and a hermaphrodite from among them, as they are fit for the altar. It is evident then that Rabbi Eliezer maintains that a hermaphrodite is not considered a proper male with respect to offerings.
אָמַר רַב נַחְמָן בַּר יִצְחָק: אַף אֲנַן נָמֵי תְּנֵינָא, רַבִּי אֱלִיעֶזֶר אוֹמֵר:
Rav Naḥman bar Yitzḥak said: We too learned this explicitly in a baraita that states: Rabbi Eliezer says:
